Probation and Induction

The interplay between the length of a probationary period and and employee rights to claim ordinary unfair dismissal

Probationary periods can be used as a means to assess an individual's suitability for employment including their conduct, capability, attendance and overall fit within the organisation, whilst also providing the employee with support, guidance and an opportunity to demonstrate the required standards.

Where concerns arise during this period and sufficient improvement is not achieved, probationary periods can also provide employers with greater flexibility to, if necessary, terminate employment with less risk of  legal challenge before the employee gains ordinary unfair dismissal protection.

Probationary periods often allow a reduced period of notice to be provided where employment is terminated, however, maintained schools that incorporate the nationally incorporated terms as local agreements, will not have the flexibility to reduce the notice periods incorporated into the terms and conditions of employment provided to its employees.

Forthcoming changes to ordinary unfair dismissal rights from 1st January 2027 (Employment Rights Act 2025)

Reduction in the threshold at which ordinary unfair dismissal rights apply

The reduced threshold will apply to new employees with an employment start date on or after 1 July 2026.

• The threshold at which ordinary unfair dismissal rights apply will reduce from two years of continuous service to six months of continuous service on 1 January 2027
• The length of service will be retrospective, meaning that anyone employed on or after 1 July 2026, who is dismissed on or after 1 January 2027, will acquire protection by the time the law changes

It is also important to be aware that if you do not give the statutory minimum notice to the employee (e.g. you pay in lieu of notice), the employee’s statutory minimum notice will be added onto their effective date of termination to determine if they have sufficient service to bring a claim for unfair dismissal.

Removal of the cap on the compensatory award 

In addition to the unfair dismissal qualifying period being reduced, the government has agreed to remove the cap on the compensatory award. If unfair dismissal compensation is not limited, conducting dismissals fairly will become key to mitigate the risk and financial impact. Where an employee’s claim of unfair dismissal succeeds, they may receive a 'basic award' and a 'compensatory award'.

• The 'basic award' will remain unchanged (and capped) and is a set formula based on age, number of years' complete service and a week's pay (capped), a multiplier is used based on the employee's age
• The 'compensatory award' for unfair dismissal is currently limited to the lower of £118,223 or 52 weeks' pay, the government has agreed to remove both limits

The government has promised to publish an impact assessment, but it's not clear that there will be any further consultation on this measure before its introduction. The timing of this change is also slightly unclear, although it seems likely that the government plans for it to take effect for dismissals from 1 January 2027, at the same time as the change in the qualifying period.

Schools also need to be mindful that employees will still be able to bring discrimination, whistleblowing and automatic unfair dismissal claims with no qualifying period. However, given that employees will achieve the qualifying service to bring an unfair dismissal claim much earlier, we may see a reduction in those pursuing discrimination and/or whistleblowing claims and instead focusing on the unfair dismissal claims.

Managing these changes from 1st July 2026

In consideration of these changes it is recommended that a probationary period does not extend beyond five months, inclusive of school closure periods and any discretionary extension period. For example, an initial three-month probation period, with provision for an extension of two months where necessary.  

In cases where an employee does not successfully pass their probationary period, a the reduced shorter initial probationary period should allow schools adequate time to review performance and give notice to an employee that their contract of employment will be terminated within the initial six months of employment, ensuring the employee does not meet the continuous service threshold of six months necessary to qualify for ordinary unfair dismissal protection. 

Acting early and fairly will be key to avoiding legal risks in the future, and a robust probationary process will help ensure your decisions are sound.  

When managing probationary periods moving forward, schools will need to:

• Be diligent in following fair processes, such as probation review meetings, capability/performance improvement plans and disciplinary procedures
• Maintain accurate records throughout to demonstrate a fair process has been followed
• Clearly document that any dismissal is for one of the fair reasons set out in legislation (in cases where an employee has gained the right not to be unfairly dismissed) 
• Assess whether  managers have the necessary skills, knowledge and adequate time allocated to deal with matters fairly and reasonably, in accordance with revised policies and procedures and shortened timeframe

We can support you in creating bespoke training for your school, please contact us if this is something you want to explore further.