Yes, you can still dismiss someone during probation

Advice from your local HR consultant in Thanet on dismissing employees during probation under the new Employment Rights Act rules taking effect in 2027.

As an owner of a small business, you might assume that letting someone go in their first few months is straightforward.

From 1 January 2027, that assumption could land you in front of a tribunal.

The qualifying period for unfair dismissal is being cut from two years to six months. Anyone hired from 1 July 2026 onwards will be covered.

You still have the right to end employment early. But the way you go about it has to change.

Here's what you need to know and what to do about it.

What you're still allowed to do

Let's get the good news out of the way first. You can still dismiss someone during their probation period. That right hasn't been removed.

If someone isn't performing, if there are conduct issues, or if the role simply isn't working out, you can still make the decision to end the employment. The Employment Rights Act changes don't stop you from doing that.

What has shifted is the bar you'll need to clear if that person decides to challenge your decision. Under the new rules, you'll need to demonstrate that you followed a fair process. A casual conversation and a goodbye won't cut it anymore.

Myth: "I can't let anyone go in the first six months now"

I hear this a lot already. It's wrong.

The new rules don't prevent dismissal during probation. They require you to handle it properly. There's a big difference between those two things.

The Employment Rights Act introduces a statutory initial period of employment, which is essentially a formal probation window. During that window, you can still part ways with someone. But even within this period, employees can bring a claim. That catches a lot of business owners off guard.

Myth: "I need to set a specific probation length to comply"

Also wrong. There's no legally mandated probation length under the new rules.

Different HR professionals and employment lawyers are suggesting different timeframes. Some say three months. Others say five or six. Nobody has landed on a definitive answer yet.

My advice? Don't get hung up on the number. A six-month probation with no structure and no written records is far riskier than a three-month probation with clear expectations and regular documented check-ins.

The quality of your process matters far more than the length of the probation period on the contract.

What fair process actually looks like now

If you're going to dismiss someone in their early months, you need to be able to show four things:

• You flagged concerns early, clearly, and in writing
• You told the employee specifically what needed to improve
• You gave them a genuine opportunity to get better
• You followed a consistent process throughout

If you can't evidence those steps, you're exposed. It really is that simple.

As part of my HR consultancy services in Thanet, I work with business owners to build exactly this kind of structure into their probation process so that it's ready before they need it.

Why the old approach no longer works

Previously, you had a two-year qualifying period before an employee could claim unfair dismissal. That gave you a long runway. If a new hire wasn't right, you could manage them out informally with relatively little legal risk.

That safety net has gone.

With the qualifying period dropping to six months, the pressure lands squarely on those first weeks and months. Your onboarding needs to set clear expectations from day one. Probation reviews need to happen on a structured timetable with written records. Performance concerns need to be raised quickly rather than left to drift.

You also need to make earlier decisions about whether someone is the right fit. And you need a paper trail showing how you reached that conclusion.

Myth: "My managers will just handle it"

Manager capability is one of the biggest risk areas I see. Many of the problems that end up on my desk started with a manager who avoided a difficult conversation. Or one who assumed the issue would resolve itself over time.

Under the old rules, that approach was risky but often went unchallenged. Under the new rules, a manager who sits on a performance concern for weeks without documenting it could be creating a tribunal claim.

Your managers need to understand what's expected of them. They need to know how to give clear written feedback and how to run a structured probation review. If they don't, the risk sits with you as the business owner.

The mistakes that leave you vulnerable

When a dismissal gets challenged, the same issues come up again and again. Here are the ones I see most often:

• No written record that concerns were ever raised with the employee
• No evidence that the employee received any support or feedback before being let go
• The company's own procedures weren't followed
• Different employees in similar situations were treated differently
• A manager hoped the problem would disappear on its own

None of these require expensive systems to fix. They just need a consistent, documented approach that your team actually follows.

Questions worth asking yourself

Before the new rules take effect, it's worth taking stock of where you stand. Ask yourself:

• If I dismissed a new employee tomorrow, could I produce written evidence of the concerns I'd raised with them?
• Do my managers know how to run a structured probation review and document it properly?
• Would my current probation process stand up to scrutiny if it were challenged at tribunal?
• Am I confident that all new starters are treated consistently, regardless of which manager they report to?

If the answer to any of those is no, or even "I'm not sure", it's worth addressing now rather than later.

How I can help

I can review your existing probation and dismissal processes to check whether they'll hold up under the new rules.

I can also work with your managers so they understand what fair process looks like in practice, not just in theory.

And if you're dealing with a specific situation right now where a new hire isn't working out, I can support you through it step by step to make sure the decision you make is legally sound.

As your outsourced HR consultant in Thanet, I work with small businesses across the area to get this kind of thing right before it becomes a problem.

If you'd like to talk any of this through, get in touch. I'm always happy to have a chat and help you figure out your next steps.