Probation Periods UK: What Employers Can and Can't Do

Starting a new job on a probation period can feel precarious. Many employees assume they have no rights during probation and can be dismissed at any time for any reason. This is not entirely true — and understanding what your employer can and cannot do can make a significant difference.

What Is a Probation Period?

A probation period is a defined period at the start of employment — typically three or six months — during which your performance, conduct, and suitability for the role are assessed. Most employment contracts include a probationary period clause.

Crucially: probation periods are not defined or regulated by statute. There is no law that says probation must last a specific time, that it can only be extended once, or that your rights during probation differ from those after it ends. Probation is a contractual construct, not a legal one.

What this means in practice: your rights during probation are whatever your contract says they are, subject to the overriding protections that apply from day one of employment.

Rights You Have From Day One

Regardless of probation status, the following rights apply from the moment you start work:

• Protection from unlawful discrimination under the Equality Act 2010 (sex, race, disability, religion, age, sexual orientation, pregnancy, and more)
• Protection for whistleblowing — if you are dismissed for making a protected disclosure, that is automatically unfair regardless of how long you have worked
• Right to the National Minimum Wage
• Right to statutory sick pay (subject to qualifying conditions)
• Right to paid annual leave (accruing from day one under the Working Time Regulations 1998)
• Right to written terms of employment within two months of starting
• Protection from automatic unfair dismissal for certain reasons (e.g., pregnancy, trade union membership)

The Two-Year Rule and Unfair Dismissal

The most significant limitation during probation is that unfair dismissal protection generally requires two years of continuous employment. If you are dismissed within the first two years, you usually cannot bring an ordinary unfair dismissal claim at the employment tribunal.

This is why probation periods exist in their current form — they allow employers to end employment during the first two years with minimal procedural obligation.

However, there are important exceptions. Dismissal is automatically unfair regardless of length of service if the reason relates to:

• Pregnancy or maternity leave
• Making a protected disclosure (whistleblowing)
• Asserting a statutory right
• Trade union membership or activities
• Part-time worker status
• Fixed-term employee status

If you are dismissed during probation for any of these reasons, you can bring a tribunal claim from day one.

Can Your Employer Extend Your Probation?

Yes — but only if your contract allows it. Most contracts include a clause permitting the employer to extend the probationary period once, typically by an additional three months, if performance concerns arise.

If your contract does not contain an extension clause, your employer cannot unilaterally extend your probation without your agreement. Doing so could constitute a breach of contract.

Even where extension is permitted, good employment practice requires your employer to:

• Communicate clear reasons for the extension in writing
• Set specific, measurable targets for the extended period
• Hold a review meeting and give you the opportunity to respond

If your employer extends your probation without following any process, this may be evidence of poor faith — relevant if a dismissal follows shortly after.

Dismissal During Probation: What Process Is Required?

While the two-year rule reduces your unfair dismissal rights, employers are not entirely free to dismiss without process during probation. Your contract will typically specify that dismissal during probation requires a shorter notice period (often one week), and good employers will still conduct a formal meeting before dismissing.

Even without unfair dismissal protection, you retain:

• The right to your notice period (or payment in lieu of notice) as specified in your contract or the statutory minimum of one week after one month's employment
• The right not to be dismissed for an automatically unfair reason
• The right not to be discriminated against

A dismissal that is dressed up as performance-related but is actually motivated by a protected characteristic (disability, pregnancy, religion, etc.) is unlawful discrimination — and discrimination claims have no qualifying period.

Sick Leave During Probation

Many employees worry that taking sick leave during probation will result in dismissal. The law offers some protection here:

• You are entitled to SSP during probation in the same way as any other employee (subject to the usual qualifying conditions)
• If your illness constitutes a disability under the Equality Act 2010, your employer must consider reasonable adjustments before taking action
• Dismissing someone during probation because they are disabled is discrimination

In practice, if you are genuinely ill during probation, notify your employer promptly, follow the absence notification procedure in your contract, and obtain a fit note if required (for absences over seven days).

What to Do If You're Dismissed During Probation

If you are dismissed during your probationary period:

1. Get the reasons in writing. Ask your employer to confirm the reasons for dismissal in a letter. This is important for any potential claim.
2. Check your notice entitlement. You are entitled to at least one week's notice after one month's service under the Employment Rights Act 1996, regardless of what your contract says.
3. Consider whether a protected reason is involved. If you were pregnant, raised a concern, or were absent due to disability, take advice immediately.
4. Check your contract. Some contracts include an enhanced right of appeal during probation.

Tips for Surviving and Succeeding During Probation

• Keep written records of positive feedback and completed work
• If you receive verbal concerns about your performance, ask for them to be put in writing along with the specific expectations
• Request a mid-probation review if your employer hasn't arranged one
• Read your contract carefully — particularly what it says about notice, extension, and the review process

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Starting a new job or concerned about a probation notice? Upload your employment contract to fairead and get a plain-English breakdown of your rights and obligations.