Dismissal During Probation Period

Probation periods allow both employer and employee to assess whether the role is right. Dismissal during probation is simpler but not without rules.

Legal Status of Probation

What Probation Means

• A trial period at the start of employment
• Usually 3-6 months
• Often has shorter notice period
• May have fewer benefits
• Employment starts from day one (not end of probation)

No Special Legal Status

Probation periods are contractual arrangements, not a special legal category. The employee is fully employed from the start date.

Employer Flexibility During Probation

What Employers Can Usually Do

• Dismiss with shorter notice than post-probation
• Dismiss without going through full disciplinary process
• Make decisions faster
• Set specific probation objectives
• Extend probation period (if contract allows)

What This Doesn't Mean

• Not a "free pass" to discriminate
• Still need to act reasonably
• Automatically unfair reasons still apply
• Contractual terms must be followed

Employee Rights During Probation

Day-One Rights

From the first day of employment:

Right	Protection
Discrimination	Full protection under Equality Act
Whistleblowing	Protection for protected disclosures
Health and safety	Can't be dismissed for H&S concerns
Pregnancy/maternity	Full protection
Minimum wage	Entitled to NMW/NLW
Working time	Rest breaks, holiday entitlement
Statutory notice	Minimum 1 week after 1 month

Not Available During Probation (Usually)

• Ordinary unfair dismissal (requires 2 years)
• Statutory redundancy pay (requires 2 years)
• Right to written reasons (requires 2 years, except pregnancy)

Fair Process in Probation

Best Practice

Even without unfair dismissal protection, employers should:

1. Set clear expectations at start
2. Provide training and support
3. Give regular feedback on performance
4. Raise concerns early - don't wait until end
5. Allow opportunity to improve
6. Hold a meeting before dismissing
7. Give reasons for the decision

Why This Matters

• Reduces discrimination risk
• Creates better evidence
• Maintains good employee relations
• Some employees may have protected characteristics

Notice Period During Probation

Contractual Notice

Contract often specifies shorter notice during probation:

"During probation, employment may be terminated by either party giving 1 week's notice."

Statutory Minimum

After 1 month of employment:

• Minimum 1 week's notice required
• Contract cannot reduce this below statutory minimum

During First Month

• No statutory minimum notice
• Contract terms apply
• Some contracts specify notice even in first month

Extending Probation

When Extension Is Appropriate

• Performance improving but not yet satisfactory
• Employee was absent during probation
• Need more time to assess
• Role changed during probation

How to Extend

• Contract should permit extension
• Inform employee before current probation ends
• Set clear objectives for extended period
• Specify new end date
• Confirm in writing

Probation Review Meetings

Conducting Reviews

Midway through probation:

• Review performance against objectives
• Identify any concerns
• Provide additional support
• Document the discussion

At end of probation:

• Confirm successful completion, OR
• Extend probation, OR
• Terminate employment

Documentation

Keep records of:

• Initial objectives
• Training provided
• Feedback given
• Review meetings
• Any concerns raised
• Support offered

Discrimination Risks

Protected Characteristics

Employers must not dismiss during probation because of:

• Age
• Disability
• Gender reassignment
• Marriage/civil partnership
• Pregnancy/maternity
• Race
• Religion/belief
• Sex
• Sexual orientation

Common Risk Areas

• Pregnant employee not passing probation
• Disabled employee needing adjustments
• Employee's religion affecting availability
• Performance affected by health condition

Challenging Probation Dismissal

Potential Claims

Even without unfair dismissal rights, employee might claim:

Claim	Basis
Discrimination	Protected characteristic
Automatically unfair	Whistleblowing, H&S, etc.
Breach of contract	Notice not given correctly
Wrongful dismissal	Summary dismissal without gross misconduct

Time Limits

• Tribunal claims: 3 months less 1 day
• Must go through ACAS early conciliation first

Best Practice Checklist

For Employers

• Clear probation terms in contract
• Specific, measurable objectives
• Regular check-ins and feedback
• Training and support provided
• Concerns raised early
• Opportunity to improve
• Meeting before final decision
• Correct notice given
• Decision documented

For Employees

• Understand probation objectives
• Ask for feedback if not getting it
• Keep records of performance
• Raise any concerns
• Request support if struggling
• Know your day-one rights
• Seek advice if dismissed