Probation periods are contractual arrangements under which an employer assesses a new employee’s suitability for a role, usually over the first three to six months of employment. An employee on probation is employed in full from their first day, with the same statutory rights as any other member of staff, and the probationary label changes only what the contract itself provides, most commonly the notice period and the point at which the appointment is confirmed.
Contract reviews, including probation clauses, are routine work for us at GAP HR. Carolyne Wahlen established the firm in 2003 to give owner-managed businesses employment law support they could genuinely rely on, and ensuring that a contract does what its owner needs remains one of the simplest protections we provide.
Call us now on 01491 598 600 or Click Here to Make An Enquiry and we will be delighted to help you.
What Is A Probation Period In Law?
In legal terms, probation is purely a matter of contract. A probation clause in an agreement marks out a period during which both sides understand that suitability is being assessed, usually with lighter notice terms attached. Its value to the employer therefore depends entirely on how well it is drafted, which is why the wording deserves special care and attention.
Which Rights Apply From Day One?
Several employee rights apply from day one of an employment relationship, regardless of what the probation clause says. They include:
• Protection against discrimination, which covers recruitment.
• The automatically unfair dismissal grounds, including dismissal for whistleblowing, for asserting a statutory right, or for reasons connected with pregnancy, all of which have no service requirement at all.
• Statutory sick pay, which is now payable from the first day of any absence.
• The written statement of particulars, which is due on or before day one.
• The national minimum wage, which applies in full with no probationary discount.
None of these rights is suspended by a probation clause. The fact that an employee is still on probation provides an employer with no defence to an employment tribunal claim.
What Should The Contract Say?
Generally speaking, the probation clause should deal clearly with four matters. The first is the length of the period, with three or six months being typical. The second is the notice that applies during it, which is commonly shorter than the standard term, although it cannot fall below the statutory minimum of one week once the employee has a month’s service. The third is a right to extend the probation period, without which no extension can be imposed. The fourth is what happens at the end, including who confirms the outcome and how.
Vague clauses can cause employers disproportionate trouble. A contract that mentions probation but says nothing about extension, or provides no reduced notice period, offers the employer none of the flexibility it was intended to provide.
Can Probation Be Extended?
Probation can only be extended where the contract allows it, or if the employee agrees. Where the power does exist, it should be exercised before the original period expires, confirmed in writing, and accompanied by the reason and the new end date. An extension announced after probation has already lapsed is, at best, of doubtful effect.
What Does The Employment Rights Act 2025 Mean For Probation Periods?
The Employment Rights Bill originally proposed unfair dismissal protection from day one, softened by a statutory ‘initial period of employment’ with a lighter-touch dismissal process. After repeated defeats in the House of Lords, both proposals were dropped. What the Employment Rights Act 2025 actually delivers, from 1 January 2027, is a qualifying period for unfair dismissal of six months rather than the current two years, together with the abolition of the compensation caps, which presently stand at the lower of 52 weeks’ gross pay or £118,223.
The change is retrospective in effect, which means that anyone with six months’ service on 1 January 2027 gains protection on that day. Until then, the two-year rule continues to apply. However, once six months becomes the threshold, the probation period and the period of lower-risk dismissal will almost coincide, and the informal buffer on which employers have relied for more than a decade will no longer exist.
What Is The Risk In Dismissing During Probation?
For ordinary unfair dismissal, the risk is currently modest, because a probationer is nowhere near two years’ service. That said, discrimination claims require no service at all, and neither do the automatically unfair grounds, so a dismissal that follows soon after a pregnancy announcement, a health disclosure, or a complaint about wrongdoing can be challenged regardless of what the contract labels the period. Contractual and statutory notice must also be honoured; probation does not permit dismissal without it.
How Can GAP HR Help With Probation Periods?
We will review your contracts so that the probation clause operates as intended, advise on any individual probationer causing concern, and make sure that notice, extension and confirmation are handled as the contract requires.
An initial discussion is free of charge, and you are under no obligation afterwards. Call us now on 01491 598 600 or Click Here to Make An Enquiry and we will be delighted to help you.
