What is changing in the UK?

When an employer is considering dismissing an employee, the first question any UK employment lawyer will ask is: Does the employee have less than two years’ service? This is because UK employees can currently bring an unfair dismissal claim against their employer only if they have two+ years’ service.

The UK Government has announced its plan to change this threshold. This means that from autumn 2026 (date to be confirmed), UK employees will be able to bring an unfair dismissal claim from day one of their employment.

What concerns does this raise for UK employers?

UK employees are already protected from dismissal on grounds of discrimination, whistleblowing detriment, and other automatically unlawful reasons for termination regardless of their length of service. Therefore, where an employee has less than two years’ service, this does not give an employer carte blanche to dismiss them for any reason at all; they still have to make sure the reason for the dismissal is not discriminatory or related to whistleblowing in any way. The two years’ service rule only releases an employer from the requirement to identify a fair reason for dismissal and follow a fair process prior to dismissal. In practice, this usually means that employers follow an expedited process, or no process at all, for employees who does not have sufficient service.

This is clearly very useful where a promising new hire suddenly reveals themselves to be a poor performer within a few weeks of joining, or where an early act of misconduct shows that an employee is not sufficiently professional in the workplace.

So, where does day one unfair dismissal protection leave UK employers in respect of trialling new joiners? It seems possible that under the new system, a company might need to undertake a full performance improvement process (which, if unsuccessful, could last three to nine months or more) with someone who is underperforming disastrously within a week of joining.

What is the solution?

The UK government has indicated that probationary periods may be of use here. They have announced that they plan to consult on “a new statutory probation period for companies’ new hires.”

The UK government and the participants in the consultation will no doubt be looking at other legal systems for examples of how this new statutory probationary period might work. We have turned to our colleagues in France to explain the ins and outs of their probation system and how this fits in with day one unfair dismissal rights.

Are there specific laws regulating French probationary periods?

Yes. The French Labour Code contains provisions on probationary periods in Articles L. 1221-19 et seq. If a collective bargaining agreement is applicable to the company, it may also contain provisions relevant to probation. Probationary periods are not automatic or mandatory, but if one is put in place in the employment contract, then the law imposes certain limits.

Is there a maximum permitted length for probationary periods in France?

Yes, the French Labour Code states that for permanent employees, the maximum duration of probation periods are:

• 2 months for blue-collar employees
• 3 months for supervisors and technicians
• 4 months for managers

Probationary periods can be renewed, but only once, and only if a collective bargaining agreement provides for this. The total length of the probationary period, including renewals, cannot exceed twice the maximum initial length set out above for each category of employee (even if a collective bargaining agreement or employment contract attempts to lengthen this period).

Specific rules apply to certain categories of workers such as employees on fixed-term contracts, employees on subsidised contracts, temporary workers, sales representatives, etc.

How does this compare to the proposals in the UK?

The UK Government is running consultations to determine the length of probationary periods. They are currently favoring a nine-month duration. It does not seem likely that there will be any distinction among different categories of employees in terms of their role function, although there could be pro rata provisions for part-time employees.

How is the dismissal process different during and after probation in France?

During the probationary period, neither employers nor employees are required to follow a full dismissal or resignation process. The parties have a discretionary right to terminate the employment contract without formalities.

That being said, employers are strongly advised to send a written notice of termination via a registered letter with acknowledgement of receipt, in order to avoid any dispute that the employment actually ended, and when.

If dismissing an employee on the last day of their probationary period, an employer must take care to pay out the notice in lieu, so that the employment ends before probation ends.

How could this translate to the UK?

The UK will likely mirror France’s process.

Furthermore, it is possible that the statutory notice (one week for employees with one month to two years’ service) will need to be taken into account when determining when the employees gain full termination rights after probation. Under current unfair dismissal law, employees gain their two-year service rights once they reach their one-week statutory notice, so before their two-year anniversary of employment. Any pay in lieu of notice must be made before the rights are accrued, or else full termination formalities are required. If this were carried across to probationary periods under the new law, employers would need to carefully review their pay in lieu of notice provisions and diarise the date that the employee gains full rights to avoid accidentally crossing the threshold.

What does the employer need to do during probation in France?

It is key for employers to keep track of employees’ performance during the probationary period. The idea is to anticipate any probation renewal or termination of employment.

The advantages of this are twofold:

1. This keeps managers’ minds focused on whether the new joiner is suitable for their role and avoids managers putting off difficult decisions until after the probationary period has passed and burdensome termination formalities apply.

2. If the employee passes probation, but a termination becomes necessary later, full formalities will then apply, and the dismissal will need to have valid grounds that can be justified.

How does this compare to the proposals in the UK?

At a minimum, it is likely that the employer will need to be acting reasonably in dismissing the employee during probation. If this is the case, it will be advisable for the employer to have some evidence of the employee’s issues, at least internally, to mitigate the risks of an unfair dismissal claim.

As in France, the probationary period could be a helpful tool in motivating managers to truly assess new hires. Because of the current two-year service requirement for unfair dismissal in the UK, many managers defer the tough decision to dismiss poor performers for many months. By the time the two-year timeframe comes along, the employee is harder to dismiss practically, if not legally, since they have been with the company for a significant length of time.

During probation, can a French employee be dismissed for any reason?

No. While the employer can end the probationary period without providing any justification, the underlying decision to dismiss must be based on an assessment of the employee's professional skills.

If the employee suspects that the employer has made the decision based on reasons unrelated to their abilities, and in particular discriminatory reasons, then they can bring a claim. The employer would then need to objectively justify the dismissal.

It is therefore crucial for employers to be able to evidence the reasons for dismissal, even during the probation period.

How would this translate to the UK?

Dismissals with less than two years’ service can currently be made for any reason, as long as that reason it not unlawful.

This means that in practice, employers ought to have some evidence of their reasons for dismissal in the event the employee tries to argue the reason was discriminatory or unlawful for another reason.

Conclusion – what lessons could the UK Government take from the French system?

1. Statutory limit: It seems likely that the UK will settle on a maximum length of six to nine months for probationary periods, including any renewals.

2. Documentation: We would expect probationary periods to be set out in the contract, including their duration and notice requirements for passing and failing probation. This aligns with the current law on employment contract requirements.

3. Implementation: Managers will need to be trained to carefully assess new hires on an ongoing basis and keep file notes of any issues. HR should check in regularly with managers and diarise the date by which any notice needs to be served or paid to ensure any decision to dismiss is made before probation expires.

4. Dismissal reason: Since employees will have day one unfair dismissal rights, dismissals during the new UK probationary periods will likely need to be for one of the prescribed fair reasons.

5. Dismissal process: As in France, we would expect simplified dismissal procedures to be applicable during the probationary period. Employers will need to consider their policies applicable to conduct and performance dismissals, particularly in light of these developments.

This is a fast-moving area of the law which will require UK companies to overhaul their approach to new hires and their management. You can keep up to date with the UK Government consultations and new legislation on our Policy Hub.