Probation Period Rights

Even during a probationary period, you have significant legal rights from the first day of employment. These include:

• Written statement of particulars: Your employer must give you a written statement of your key employment terms on or before your first day (since April 2020).
• National Minimum Wage: You must be paid at least the National Living Wage or National Minimum Wage rate for your age group.
• Working time protections: Including the 48-hour weekly working time limit (unless you have opted out), rest breaks, and paid holiday from day one.
• Protection from unlawful discrimination: Under the Equality Act 2010, you cannot be dismissed or treated detrimentally because of a protected characteristic — even during probation.
• Protection for whistleblowing: If you make a protected disclosure, you cannot be dismissed or subjected to detriment regardless of your length of service.
• Statutory Sick Pay: You become eligible for SSP after four days of continuous sickness absence, provided you earn above the lower earnings limit.

The right to claim unfair dismissal requires two years of continuous employment. This means that if you are dismissed during a probationary period of six months or one year, you generally cannot bring an unfair dismissal claim — even if the reason for dismissal seems unfair.

However, dismissal during probation is not entirely without legal constraint:

• Dismissal is automatically unfair — regardless of length of service — if it is for a protected reason, such as whistleblowing, assertion of a statutory right, trade union activities, pregnancy, or making a health and safety complaint.
• Dismissal is unlawful if it is because of a protected characteristic (disability, sex, race, religion, sexual orientation, etc.) — this is direct discrimination under the Equality Act 2010.
• Your employer must give you the contractual or statutory notice period (whichever is longer) even during probation.

Many employers have a shorter notice period during probation (often one week). This is permitted provided it is not shorter than the statutory minimum (one week after one month's service).

Many employers extend probationary periods if they have concerns about performance or conduct. An extension is only lawful if:

• The contract or written statement of terms permits extension, or
• You agree to the extension

An employer cannot unilaterally extend a probationary period beyond the term set out in the contract without your agreement. If you are asked to agree to an extension, you are entitled to understand the specific reasons and what targets or improvements are required during the extended period.

Regardless of whether you are in a probationary period or not, if you are facing performance management or a disciplinary process, you should be given the opportunity to understand the concerns, respond to them, and be accompanied at any formal meeting. Good practice requires employers to follow a fair procedure even during probation.

One of the most significant changes proposed in the Employment Rights Bill — introduced to Parliament in October 2024 and progressing through Parliament at the time of writing — is the removal of the two-year qualifying period for unfair dismissal claims. If enacted as planned, employees will have the right to claim unfair dismissal from day one of employment, including during a probationary period.

This is a fundamental shift from the current position, under which an employer can dismiss a probationary employee without risk of an unfair dismissal claim (provided the dismissal is not discriminatory or for a protected reason). Under the proposed new framework, a dismissal during probation could be challenged as unfair if the employer did not follow a fair procedure and have a fair reason for dismissal.

However, the government has proposed a modified regime for dismissals during an initial period of employment — expected to be a statutory probationary period of around nine months. During this initial period, a lighter-touch fairness requirement would apply: employers would need to demonstrate a fair reason for dismissal and follow a basic procedural process, but the threshold for establishing fairness would be lower than under the standard unfair dismissal regime. The precise details of this initial period regime were still being consulted on and developed as the Bill progressed.

Key points to note:

• Day-one unfair dismissal rights are not yet law — the Bill must complete its parliamentary passage and the relevant provisions must be commenced by statutory instrument before they take effect.
• Even under the proposed new rules, the protection would not be unlimited — employers who follow a fair process and have a substantive reason will still be able to dismiss during probation.
• The existing day-one protections — against discriminatory dismissal, dismissal for whistleblowing, and other automatically unfair reasons — remain in force now and are not affected by the Bill.

If the Bill is enacted in its current or a similar form, employers will need to put in place more robust probation processes — including clear documentation of performance concerns, regular reviews, and an opportunity for the employee to respond before dismissal. Employees being dismissed during probation should take note of whether the new regime has commenced, and seek advice from Acas or Citizens Advice about the applicable rules at the time.