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.
Explore whether probationary period dismissals can be unfair in England and Wales. This comprehensive guide explains contractual probation, statutory rights, discrimination protections, automatically unfair dismissals, notice requirements and upcoming legal changes affecting unfair dismissal claims.
Probationary periods are common in employment contracts in England and Wales, allowing employers to assess new employees' suitability for a role. During this period, it may seem easier for an employer to dismiss someone, but that does not mean such a dismissal is automatically fair or free from legal risk. Understanding how probationary period dismissals interact with unfair dismissal law, statutory rights, discrimination protections and employer procedures helps both employees and employers navigate this early stage of a working relationship. This article explains the legal framework, rights during probation, how dismissals are assessed, current and future changes in law, and practical considerations.
What Is a Probationary Period?
A probationary period is a contractual trial period agreed between employer and employee. There is no statutory requirement for a probationary period in UK law; it only exists if written into the employment contract. Typical probationary periods range from three to six months, but employers can agree any reasonable period in the contract. A probationary period may affect contractual terms such as notice periods, benefits or the process for confirming permanent employment.
Rights That Apply During a Probationary Period
Even though probationary periods are contractual, employees still retain statutory rights from day one:
- Protection from discrimination under the Equality Act 2010.
- Protections against automatically unfair dismissal reasons (such as whistleblowing or health and safety actions).
- Statutory minimum pay, holiday entitlement and working time rights.
- Right to a written statement of terms of employment.
These rights apply regardless of service length and are not removed by probation.
Ordinary Unfair Dismissal and Probation
Under current law, employees generally need two years' continuous service before they qualify to bring an ordinary unfair dismissal claim to an employment tribunal. Most probationary period dismissals occur well before this point, meaning the employee cannot claim ordinary unfair dismissal on the basis of an unfair process or lack of reasonable grounds solely because they were on probation.
However, this does not mean probationary dismissals are free from scrutiny:
- Employers must still honour contractual notice periods or pay in lieu of notice.
- An employer cannot dismiss for discriminatory reasons or for reasons that are treated as automatically unfair (for example pregnancy, whistleblowing, trade union activities).
- A probationary dismissal could still be challenged as discriminatory or for other statutory breaches even if ordinary unfair dismissal rights are not yet available.
Automatically Unfair Reasons and Probation
Certain dismissal reasons are treated as automatically unfair under law and do not require a qualifying period:
- Dismissal because an employee exercises statutory employment rights, such as whistleblowing.
- Dismissal related to family rights, pregnancy, maternity, paternity or adoption leave.
- Dismissal linked to health and safety actions.
- Dismissal associated with trade union membership or representation.
If a probationary dismissal occurs for one of these statutory reasons, an employee may bring a claim from day one. Employers should be careful to avoid attributing a probationary dismissal to performance if the real reason relates to protected activity.
Discrimination and Probation
Probation does not remove protection against unlawful discrimination. If a dismissal during probation is linked to a protected characteristic under the Equality Act 2010 (such as age, sex, race, disability, religion), an employee can bring a discrimination claim regardless of service length. Discrimination claims include dismissal because of a protected characteristic or where a discriminatorily applied policy impacts a protected class. Employers must ensure that probationary assessments and dismissal decisions are free from discriminatory bias.
Procedural Fairness and Probation
Although an employee on probation cannot usually bring ordinary unfair dismissal claims due to lack of qualifying service, tribunals have acknowledged that employers must still act fairly and reasonably in how they manage probationary reviews and dismissals. In Donal O'Donovan v Over‑C Technology, a court granted an injunction preventing dismissal during probation because the employer failed to afford fair procedures when assessing performance, demonstrating that probation does not grant unfettered power to dismiss without adherence to contractual terms and natural justice principles.
This does not equate to an employment tribunal claim but underscores that employers should manage probation with documented reviews, structured feedback and opportunities for employees to respond to concerns.
Notice and Contractual Terms
Even during probation, employers must observe the notice period specified in the contract or the statutory minimum, whichever is higher. Under current statutory rules, after one month of service, employees are entitled to at least one week's notice if the contract does not specify a longer period. If an employer fails to give contractual or statutory notice, a claim for wrongful dismissal or breach of contract may arise.
Proposed Changes in Law
The Employment Rights Bill currently progressing through Parliament proposes significant reforms to unfair dismissal rights. Once implemented, the qualifying period for ordinary unfair dismissal will be reduced from two years to six months' continuous service. This change will affect probationary period dismissals because:
- Employers may need to handle dismissals after six months with the potential for ordinary unfair dismissal claims.
- Probationary procedures and documentation will become more important to defend dismissal decisions in tribunals.
- New provisions may introduce a statutory “initial period” with a lighter touch dismissal process before the end of the initial employment period (likely three to nine months), offering some protection to employers while expanding employee rights. These reforms are expected to take effect by 2026–2027.
Until these changes are implemented in legislation and associated regulations, the two‑year qualifying period remains in force, but employers should prepare for the shift by strengthening probation handling and notice practices.
Practical Considerations
For Employers
- Document performance and reviews during probation periods to support decision‑making.
- Communicate expectations clearly and give feedback throughout the probationary period.
- Avoid dismissing an employee for reasons that could be linked to protected characteristics or automatically unfair reasons.
- Provide contractual or statutory notice and maintain records of meetings and correspondence.
- Prepare for forthcoming legislative changes that will expand unfair dismissal risk into shorter service periods.
For Employees
- Check your employment contract to understand express terms of notice, review and probation conditions.
- Maintain records of performance reviews, feedback and any communications about your dismissal.
- Consider whether the reasons given for dismissal relate to protected activity or discrimination.
- Seek advice early if you suspect unlawful treatment, especially where dismissal touches on statutory protections.
Key Takeaways
Probationary dismissals in England and Wales are generally not treated as unfair dismissal if the employee lacks the necessary qualifying service under current law. However, probation does not negate statutory rights such as discrimination protection or automatically unfair dismissal for specific reasons. Employers must follow contractual terms, provide notice, and avoid discriminatory or unlawful grounds for dismissal. Proposed legislative changes reducing the qualifying period for unfair dismissal to six months will increase the importance of fair practice during probationary periods. Both employers and employees should be aware of their rights and responsibilities to manage or respond to dismissals during probation effectively.
