This is the second of five articles on the upcoming changes to unfair dismissal rules and their impact on professional service firms.
Probation is not a legal safe harbour
Many professional services firms use a six-month probation period. From 1 January 2027, that familiar timetable will sit directly alongside the new six-month qualifying period for ordinary unfair dismissal. Probation remains a contractual management tool; it does not postpone statutory rights or create a separate, simplified legal route to dismissal.
The practical risk is obvious. If a final probation review takes place at six months, the employee may already have acquired protection, or statutory notice may carry them over the threshold. Treating the review date as the first serious decision point will therefore be too late.
Build an evidence rhythm from day one
Professional performance is rarely captured by one metric. Time recording, utilisation and billing matter, but firms also assess accuracy, judgement, responsiveness, client care, teamwork, supervision and regulatory compliance. A defensible probation process should translate those expectations into observable standards and review them consistently.
A useful structure is an early objectives meeting, frequent supervision notes and formal checkpoints well before the final review. The purpose is not to manufacture a dismissal file. It is to give the employee a fair opportunity to understand what good looks like, receive support and respond to concerns while the firm still has time to make an informed decision.
Do not confuse “not the right fit” with a fair reason
Partners and managers often describe an unsuccessful recruit as “not the right fit”. That may conceal several different issues: capability, conduct, attendance, a breakdown in working relationships or a reduced business need. Once ordinary unfair dismissal protection applies, the firm should identify the real reason and act reasonably in treating it as sufficient for dismissal.
Vague language also risks masking bias. If concerns relate to communication style, availability, confidence or client presence, decision-makers should test whether disability, race, sex, age, religion, family responsibilities or another protected characteristic may be relevant. Discrimination protection continues from day one, irrespective of the new six-month threshold.
Extensions need purpose, not habit
Extending probation can be sensible where evidence is incomplete, support has only recently been put in place, or absence has limited the assessment period. But an extension should not be an automatic response to managerial indecision. It should identify the concerns, the required improvement, available support, the review period and the possible outcomes.
An extension beyond six months will not preserve the old freedom to dismiss without an ordinary unfair dismissal claim. Firms should therefore decide whether the extension is genuinely likely to resolve the issue and ensure that any eventual process is fair.
A better operating model for firms
HR and practice leaders should map the full probation workflow backwards from the legal threshold. Diary prompts should allow time for evidence gathering, a review meeting, any reasonable improvement opportunity, decision-making and notice. Contracts and policies should also be checked for consistency, including who may extend probation and whether enhanced procedures are contractual.
The commercial goal is not faster dismissal at all costs. It is earlier management. Firms that set clear expectations, train supervisors and address concerns promptly are more likely to retain good recruits, improve marginal performance and make safer decisions when employment does need to end.
Questions for leadership
Leaders should ask whether supervisors have the time and confidence to give candid feedback, whether underperformance is being recorded consistently, and whether objective measures are balanced with professional judgement. They should also test whether the firm provides reasonable support, including training, supervision and adjustments where relevant. A probation process that exists only on paper will offer little protection if the real decision-making happens informally and is poorly documented. Firms should also review whether client feedback is collected fairly and put to the employee, rather than treated as decisive without context. Where utilisation or billing is relied upon, managers should consider workflow allocation, supervision and market conditions so that the employee is assessed on matters reasonably within their control.
Practical next step: Audit probation dates, extension wording, review forms and manager diary prompts, then test whether decisions can realistically be reached before six months without compromising fairness or quality.
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