Do I need to follow a formal process to dismiss someone in their probation period?

The answer used to be simpler. Before the Employment Rights Act changes, employees needed two years' continuous service to claim unfair dismissal. If someone was in their probation period, you could end their employment relatively cleanly without much procedural formality.

That's no longer the case.

Day one unfair dismissal rights mean that every employee, from their first day of employment, has the right not to be unfairly dismissed. The qualifying period is gone. And that changes what you need to do during probation significantly.

What this actually means in practice

It doesn't mean you can't dismiss someone during probation. You absolutely can. Probation exists precisely so that both parties can assess whether the arrangement is working. What's changed is that "it's not working out" on its own isn't enough. You need to be able to show that the dismissal was for a fair reason and that you followed a reasonable process.

The fair reasons haven't changed. Capability (they can't do the job), conduct (they've done something wrong), or some other substantial reason. What the day one rights change is the standard of process expected from the start.

What a reasonable process looks like during probation

You don't need to run a full-blown disciplinary or capability procedure for a probation exit. But you do need to demonstrate that you acted fairly. In practice, that means several things.

You set clear expectations at the beginning of the probation. The employee knew what was expected of them. The objectives were specific and written down.

You held regular reviews. Monthly at minimum. You gave feedback. You identified areas of concern. You documented the conversations. The employee knew where they stood.

If there were performance concerns, you told the person. In writing. Early enough that they had a genuine opportunity to improve. Not for the first time at the final probation review.

Before making a decision to dismiss, you held a meeting. You explained the concerns. You gave the employee the opportunity to respond. You considered what they said.

That's not onerous. It's basic fairness. And it's what a tribunal will look for.

The mistakes that create exposure

The most common is silence followed by a surprise. The manager has concerns from week three but never raises them. At month five, they decide it's not working and move to end the employment. The employee's first formal indication that anything was wrong is the letter inviting them to a meeting about their future. That's not a fair process. It's an ambush.

The second is assuming probation is a free pass. Some employers still operate as though probation means they can dismiss without consequence. That was marginal even before the law changed. Now it's actively dangerous.

The third is skipping the meeting. Even during probation, dismissing someone without giving them the opportunity to hear the concerns and respond to them is procedurally unfair. It doesn't need to be a formal hearing with a panel and a note-taker. But it does need to happen.

What if the issue is conduct, not performance?

If someone does something during their probation that's a conduct issue, a no-show without explanation, dishonesty, a serious breach of policy, you still need to investigate and follow a fair procedure. The ACAS Code of Practice applies from day one. Ignoring it because the person is "only on probation" is a shortcut that leads directly to a tribunal.

The practical takeaway

Probation still works. It's still the right mechanism for assessing whether a new employee is the right fit. But it only protects you if you manage it actively. Set expectations. Give feedback. Document the conversations. And if it's not working, address it early and follow a fair process.

If you've got a probation situation that's got complicated, or you want to make sure your probation process is robust enough for the current legal framework, getting advice now is significantly cheaper than getting it wrong.

Book a free discovery call with King HR Advisory.