Understanding your rights as an employee during a probationary period is important to ensure you are treated fairly and lawfully at work. A probation period does not override your legal protections and entitlements, nor does it give your employer free rein to dismiss or mistreat you without consequence. At Stephensons, our employment law specialists regularly advise individuals on their rights during probation, helping to navigate any concerns that arise during this critical time in your employment.
What is a probation period?
A probation period is a trial phase typically set by an employer at the start of a new employment contract. It allows both the employee and the employer to assess whether the role is a suitable fit. The length of a probation period can vary but is generally between three and six months. It should be clearly outlined in your employment contract, including any terms relating to notice periods and performance reviews.
Your basic employment rights during probation
Many employees mistakenly believe that they have few or no rights during probation. However, you are still entitled to several employment protections from day one of your employment. These include:
- The right to receive at least the National Minimum Wage
- The right not to be discriminated against under the Equality Act 2010
- The right to a safe and healthy working environment
- The right to be paid for work completed, including holidays accrued
- The right to statutory sick pay if eligible
These rights apply regardless of whether you are on probation, part-time, full-time or on a fixed-term contract.
Notice periods during probation
During your probation period, the notice period required for either party to terminate the employment contract is often shorter than it would be after confirmation in post. The statutory minimum notice period is one week for employees who have worked for more than one month but less than two years. However, your contract may state a different notice period, which must be followed unless unlawful. Employers must comply with the contract’s terms, even during probation.
Dismissal during probation
While employers can terminate employment during probation more easily due to reduced service length, they still must act within the law. If an employee is dismissed during probation for discriminatory reasons—such as race, sex, disability, religion or age—this can give rise to a claim for unlawful discrimination under the Equality Act.
Additionally, where an employee has engaged in whistleblowing or raised health and safety concerns, any dismissal as a result may be considered automatically unfair, regardless of their length of service. At Stephensons, we advise employees who believe their dismissal may have been unlawful and help identify whether legal redress is available.
Right to be accompanied in meetings
Although probationary employees may not have the same grievance or disciplinary rights as those with longer service, you may still be entitled to be accompanied to formal disciplinary or dismissal meetings. This is particularly relevant if the meeting may result in a formal warning or termination of your employment. You usually have the right to be accompanied by a colleague or trade union representative.
Holiday entitlement during probation
Employees accrue statutory holiday entitlement from the first day of employment, regardless of probation status. You are entitled to 5.6 weeks of paid holiday per year, pro-rated for part-time work. Employers may limit the ability to take holiday during probation, but they cannot prevent you from accruing it. Any untaken entitlement must be paid on termination of the contract.
Performance reviews and feedback
During a probation period, it is standard practice for employers to conduct performance reviews and provide feedback. While not a legal requirement, a fair and transparent review process is considered good employment practice. It allows you to understand how your performance aligns with expectations and gives you an opportunity to improve if necessary.
If you believe you are being treated unfairly, receiving inconsistent feedback, or facing discriminatory conduct during your review process, it is advisable to keep detailed records and seek legal advice. Our team at Stephensons can help assess whether your treatment has breached your employment rights and advise on the most appropriate steps to take.
Extension of probation periods
Probation periods can sometimes be extended, usually due to performance concerns or where the employer requires more time to assess suitability. Any extension must be explicitly agreed and documented in writing. The original employment contract should allow for this possibility. If your probation is extended without your agreement or clear grounds, you may have grounds for challenging the decision.
Raising concerns during probation
Probationary employees have the right to raise concerns or grievances in the workplace. This may relate to bullying, unreasonable performance targets, discrimination or an unsafe working environment. Although you may not have the full scope of grievance procedures available to longer-serving employees, you should still report any issues formally in writing. Employers should respond appropriately and not penalise you for raising legitimate concerns.
When to seek legal advice
If you suspect that your rights during probation are being infringed – whether through unfair dismissal, discrimination, or refusal of statutory entitlements – it is crucial to seek legal advice early. Stephensons has extensive experience supporting employees during probation and beyond. We offer expert guidance on your rights, potential claims, and how to protect your professional reputation during a vulnerable time in your career.
While probation periods can feel precarious, the law affords all employees a baseline level of protection from the moment their contract begins. Employers must respect these rights, and employees have the ability to challenge unlawful treatment.
Contact us
To speak to an employment law specialist at Stephensons, call us on 0161 696 6170 or fill in our enquiry form.
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