This guide is maintained as a current resource for July 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Comprehensive guide to discrimination during probation periods at work explains how the Equality Act 2010 protects employees from day one, what counts as unlawful treatment, tribunal claims, time limits, employer responsibilities and practical guidance for fair probation processes in UK workplaces.
A probation period is a common contractual arrangement employers use to assess a new employee's performance, suitability and fit for a role. While probation can influence procedures for performance reviews and dismissal, it does not remove legal protections that employees have from the first day of employment. In particular, the Equality Act 2010 protects employees from unlawful discrimination during probation, just as it does for employees beyond probation. This article explains how discrimination during probation can arise, what rights employees have, how legal claims work, time limits, and practical guidance for both employees and employers in England and Wales.
What Employees Are Protected From During Probation
Employees on probation have the same statutory protections from discrimination under the Equality Act 2010 as other employees. This includes protection from adverse treatment because of any protected characteristic such as age, disability, sex, race, religion or belief, sexual orientation, gender reassignment, pregnancy and maternity, and marriage or civil partnership. These protections apply from day one of employment and cannot be contracted away.
Probation does not mean a person has no rights. Workers on probation still accumulate statutory benefits such as the right to the National Minimum Wage, statutory sick pay (if eligible), and paid holiday. Employers must also provide the written terms of employment within two months of starting, including the probationary arrangements.
How Discrimination Can Arise During Probation
Unlawful Unfavourable Treatment Based on Protected Characteristics
An employer must not dismiss, treat unfavourably, or otherwise detrimentally affect an employee on probation because of a protected characteristic. For example:
- Dismissing an employee on probation because they have disclosed a disability and have had related absences without considering reasonable adjustments.
- Failing a pregnant employee's probation or terminating employment shortly after disclosure of pregnancy where the decision is linked to the pregnancy.
- Treating a worker less favourably compared to a colleague on probation because of age or race.
These situations may amount to direct discrimination if the unfavourable treatment is because of a protected characteristic. They may also be indirect discrimination if a probation practice disproportionately disadvantages a group sharing a protected characteristic without objective justification.
Disability and Reasonable Adjustments
If an employee has a disability, an employer has a duty to consider reasonable adjustments from day one, even during probation. Failure to make adjustments or penalising the employee for disability‑related absences (for example, frequent short periods off work) may give rise to a claim.
Contractual Misuse of Probation
Employers sometimes operate probation in ways that may breach contractual terms. For example:
- Not following a probation clause in the contract (e.g., extending probation unilaterally without contractual right) can lead to wrongful dismissal or breach of contract claims separate from discrimination.
Probation cannot lawfully be used to avoid statutory rights, such as discrimination protections or the right to statutory benefits.
Claims and Legal Processes
Equality Act Claims
Employees who believe they were discriminated against during probation may bring a discrimination claim to an employment tribunal. Unlike standard unfair dismissal claims (which ordinarily require at least two years' continuous service), discrimination claims can be brought from the first day of employment.
Time Limits
Discrimination claims to an employment tribunal must normally be presented within three months minus one day of the last act of discriminatory treatment. It is important to adhere to this time limit, as tribunals will only allow extensions in very limited circumstances.
Burden of Proof
To succeed in a discrimination claim, an employee must first establish facts from which the tribunal could conclude discrimination occurred. Once this is shown, the burden may shift to the employer to justify its actions with a non‑discriminatory explanation.
Practical Guidance for Employers
Draft Clear Policies and Training
Employers should ensure that probation policies and performance criteria are objective, fair and consistently applied. This includes:
- Clear documentation of performance expectations.
- Regular probation reviews with objective evidence.
- Training for managers on equality law and unconscious bias.
- Ensuring performance issues are clearly distinguished from matters related to protected characteristics.
Failing to manage probation fairly increases the risk of discrimination claims.
Handle Pregnancy and Disability Carefully
If an employee is pregnant or disabled, employers should ensure that absences, adjustments and performance reviews are handled lawfully. For example, probation may continue while maternity leave is planned, but unfavourable treatment because of pregnancy‑related absence would be unlawful.
Common Questions
Can an employer dismiss someone on probation without risk?
Employers can dismiss for performance or suitability reasons during probation, but the reason must not be discriminatory and must comply with contractual terms. Decisions that are discriminatory or breach contract terms can lead to tribunal claims.
Does length of service matter for discrimination claims?
No. Discrimination protections under the Equality Act 2010 apply from the first day of employment, irrespective of how short the probationary period is.
Can probation be extended because of absence?
Employers may extend probation if the contract provides for it, but extensions must be consistent with contractual terms and must not be used in a discriminatory way.
Summary
Employees on probation are fully protected from unlawful discrimination under the Equality Act 2010 from the first day of employment. Probationary dismissal or unfavourable treatment that is linked to a protected characteristic - such as disability, pregnancy, age or race - may give rise to a tribunal claim, even if the employee has not accrued service for ordinary unfair dismissal. Employers should apply probation criteria objectively, document performance and avoid bias or assumptions connected to protected characteristics. Understanding legal protections during probation helps both employees and employers manage probation fairly and comply with UK employment law.
