If an employee is absent for significant periods during their probationary period, will they still gain unfair dismissal rights after six months?

The qualifying period for unfair dismissal decreases from two years to six months for dismissals with an effective date of termination on or after 1 January 2027.

An employee will gain unfair dismissal rights after six months even if they have been absent for significant periods during the probationary period.

The question of whether or not an employee has qualified for unfair dismissal protection is simply a matter of the length of time they have been employed under a contract of employment. As long as such a contract is in place, continuous service accrues even if the employee is off sick or on holiday for some or all of that time. Once the employee has been employed for six months (if the effective date of termination is on or after 1 January 2027), unfair dismissal protection will apply.

This does not mean that the employee cannot be dismissed. The employer could still extend a probation period and dismiss the employee at the end of that on the grounds of capability. But in those circumstances, the employee would be able to argue that the dismissal was unfair. Whether the employer had behaved reasonably in dismissing the employee would then be a matter for the tribunal to decide.