Probation Period Discrimination at Work

A probation period is commonly used at the start of employment to assess whether an employee is suitable for a role. However, employees remain protected by UK discrimination law throughout probation. In England and Wales, the Equality Act 2010 applies from day one of employment, meaning probationary status does not reduce legal rights.

Discrimination during probation can occur when an employee is treated unfairly, dismissed, or denied progression because of a protected characteristic. Such conduct may lead to claims in the Employment Tribunal, even if the employee has not yet gained full employment protections for unfair dismissal.

This article explains how discrimination law applies during probation, common risks, employer obligations, tribunal claims, and practical steps for both employees and employers.

Legal Framework: Equality Act 2010

The Equality Act 2010 protects employees and workers from discrimination based on protected characteristics, including:

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

Importantly, these protections apply from the first day of employment, including any probationary period.

Key types of discrimination include:

• Direct discrimination
• Indirect discrimination
• Harassment
• Victimisation

Probation does not weaken these rights.

What Is Probation Period Discrimination?

Probation period discrimination occurs when an employee is treated unfairly during their probation because of a protected characteristic.

This may include:

• Early termination based on discriminatory reasons
• Unequal treatment compared to other probationary employees
• Biased performance assessments
• Denial of training or support
• Failure to make reasonable adjustments

Even if performance concerns are cited, discrimination may still be present if the underlying reason relates to a protected characteristic.

Common Examples of Discrimination During Probation

1. Pregnancy and maternity discrimination

• Dismissal after informing employer of pregnancy
• Negative assumptions about availability due to maternity leave
• Failure to extend probation due to pregnancy-related absence

This is automatically unlawful and does not require a comparator.

2. Disability discrimination

• Termination due to disability-related absence
• Failure to adjust performance expectations
• Not providing reasonable adjustments during assessment

Employers must make reasonable adjustments where required.

3. Age discrimination

• Younger employees dismissed for being “inexperienced” without objective basis
• Older employees rejected as “not a cultural fit” based on stereotypes

4. Sex discrimination

• Differential treatment of men and women during probation
• Biased assumptions about commitment or capability

5. Race or nationality discrimination

• Unfair performance evaluation linked to accent or communication style
• Exclusion from training or integration opportunities

Performance Management vs Discrimination

Employers are entitled to assess performance during probation. However, lawful performance management must be:

• Based on objective criteria
• Consistently applied
• Properly documented
• Supported with evidence and feedback

Discrimination may arise where:

• Criteria are applied inconsistently
• Subjective judgments are influenced by bias
• Employees are not given fair opportunity to improve
• Comparators are treated more favourably

Reasonable Adjustments During Probation

Under the Equality Act 2010, employers must make reasonable adjustments for disabled employees during probation.

This may include:

• Adjusting performance targets
• Providing additional training or supervision
• Modifying working arrangements
• Allowing flexible assessment methods

Failure to do so can make dismissal or poor appraisal unlawful.

Dismissal During Probation and Discrimination Risks

While employees with less than two years' service typically do not have full unfair dismissal rights, discrimination claims are unaffected by length of service.

A probationary dismissal may be unlawful if:

• It is based on a protected characteristic
• It fails to consider reasonable adjustments
• It is influenced by pregnancy or maternity status
• It is procedurally unfair in a discriminatory context

Tribunals will examine the real reason behind dismissal, not just the employer's stated explanation.

Evidence in Probation Discrimination Cases

Evidence commonly used in tribunal claims includes:

• Probation review documents
• Emails and written feedback
• Performance appraisals
• Comparator treatment (other employees in probation)
• HR policies and training records
• Witness statements

Inconsistencies between documentation and employer reasoning are often significant.

Employment Tribunal Claims Process

Employees alleging probation discrimination may bring a claim in the Employment Tribunal.

1. ACAS Early Conciliation

• Mandatory first step
• Encourages early settlement

2. ET1 Claim Form

• Sets out discrimination allegations
• Identifies protected characteristic involved

3. Employer Response (ET3)

• Employer defends decision

4. Disclosure and Evidence

• Exchange of documents and witness statements

5. Hearing

• Tribunal determines whether discrimination occurred

6. Remedy Stage

• Compensation assessed if claim succeeds

Time Limits for Claims

Strict time limits apply:

• Most discrimination claims must be brought within 3 months less one day of the discriminatory act (e.g. dismissal or adverse decision)
• ACAS Early Conciliation pauses the limitation period

Tribunals may extend time where it is just and equitable, but this is discretionary.

Remedies and Compensation

If a claim succeeds, tribunals may award:

• Compensation for financial loss (including lost earnings)
• Injury to feelings damages
• Interest on compensation

Compensation in discrimination claims is unlimited, depending on severity and impact.

Employer Defences

Employers may defend probation discrimination claims by showing:

• The decision was based on genuine performance concerns
• Objective criteria were applied consistently
• No connection exists between treatment and a protected characteristic
• Reasonable adjustments were made where required
• Procedural fairness was followed

Tribunals will assess whether the stated reason is genuine or a pretext for discrimination.

Practical Steps for Employees

Employees who believe they are experiencing probation discrimination may:

• Keep records of feedback and performance reviews
• Request written reasons for decisions
• Compare treatment with other probationary employees
• Raise concerns through grievance procedures
• Use ACAS Early Conciliation if necessary

Practical Steps for Employers

Employers should ensure probation processes are:

• Clearly documented and structured
• Based on objective performance criteria
• Supported by regular feedback
• Inclusive of reasonable adjustments
• Free from bias or stereotyping
• Consistently applied across employees

Key Takeaways

Probation period discrimination is unlawful under the Equality Act 2010, which protects employees from day one of employment. Employers must ensure that probation decisions are based on objective performance criteria and not influenced by protected characteristics.

Employees remain fully protected during probation and can bring claims for discrimination even without qualifying service for unfair dismissal protection. Compensation is potentially unlimited, and tribunals carefully examine the real reasons behind probation decisions.