UK Probation Period Rights (2026/27): What Employers Can and Can't Do
UK probation period rights for 2026/27: statutory protections that apply from day one, the Employment Rights Bill proposed 9-month statutory probation, dismissal during probation, extending probation, what counts as discrimination, sick pay during probation, holiday accrual, and how the new "day-one" unfair dismissal right (when commenced) reshapes probation entirely.
Rights from day one vs rights that wait
The probation period is a contractual concept - it doesn\'t suspend statutory rights. Most employee protections apply from day one. The big exception is general unfair dismissal (currently 2 years service required, subject to Employment Rights Bill reform).
| Right | When it applies | Source |
|---|---|---|
| Written statement of particulars | Day one | Section 1 ERA 1996 (as amended April 2020 + April 2024) |
| National Minimum Wage / National Living Wage | Day one | NMW Act 1998 |
| Statutory Sick Pay (SSP) | Day one of sickness (LEL earnings gate and 3 waiting days both removed from 6 April 2026) | Social Security Contributions and Benefits Act 1992; Employment Rights Act 2025 |
| Holiday entitlement (5.6 weeks pro-rata) | Day one (accrued from start) | Working Time Regulations 1998 |
| Discrimination protection (9 protected characteristics) | Day one (no service requirement) | Equality Act 2010 |
| Pension auto-enrolment | After 12 weeks (postponement permitted) | Pensions Act 2008 |
| Maternity / paternity / shared parental leave | Day one for leave; SMP needs 26 weeks service | ERA 1996 + various |
| Right to request flexible working | Day one (post April 2024) | Flexible Working (Amendment) Regulations 2023 |
| Whistleblowing protection | Day one | Public Interest Disclosure Act 1998 (PIDA) |
| Unfair dismissal (general) | 2 years service (current); proposed day-one in Employment Rights Bill | Section 108 ERA 1996; ERB pending |
| Statutory redundancy pay | 2 years service | Section 155 ERA 1996 |
Probation dismissal: what's lawful
Employers can dismiss during probation for "not working out" without needing to prove a fair reason - because the general unfair dismissal protection requires 2 years service. What they still cannot do:
- Discriminate on protected characteristics - dismissing because of age, sex, race, religion, sexual orientation, disability, gender reassignment, pregnancy/maternity, marriage/civil partnership is unlawful from day one (Equality Act 2010, no service required, uncapped compensation).
- Retaliate for whistleblowing - dismissal for a protected disclosure (PIDA 1998) is automatically unfair from day one.
- Dismiss for asserting a statutory right - asking about NMW, requesting flexible working, taking statutory sick leave, taking parental leave - these are all "automatically unfair" reasons regardless of service.
- Breach contractual notice - even probationers are entitled to contractual notice (typically 1 week). Failure to give notice = wrongful dismissal claim.
Practical tip: probation dismissal letters that reference your performance, fit, or "not the right match" rarely cross legal lines. Letters that reference your age, accent, pregnancy news, or recent complaint cross the line immediately. Keep written records.
Employment Rights Bill: the proposed reform
Introduced October 2024, the Employment Rights Bill proposes a major reshape of probation + unfair dismissal:
- 9-month statutory probation period - during which a modified, lighter dismissal process applies (fair reasons + lighter procedural requirements).
- Day-one unfair dismissal protection beyond the 9-month statutory probation - replacing the current 2-year qualifying period.
- Day-one statutory sick pay (no waiting days) - removes the current 3-day waiting period and the LEL earnings threshold.
- Day-one paternity + bereavement leave - removes service-length requirements for these family rights.
- Sectoral collective bargaining in adult social care + (later) other sectors.
Commencement is phased over 2025-2027. Check gov.uk\'s Employment Rights Bill page for the latest commenced provisions before relying on any single right.
Related guides
- UK Employment Contract Red Flags 2026/27 - probation extension clauses to watch.
- UK Statutory Sick Pay 2026/27 - SSP during probation.
- UK Statutory Maternity Pay 2026/27 - parental leave + pay eligibility.
- UK Statutory Redundancy Pay 2026/27 - service threshold of 2 years.
- UK salary negotiation 2026/27 - probation salary review timing.
Frequently asked questions
Is my employer required to give me a probation period?
No. Probation is contractual, not statutory. Some employers don't use one. Most use 3-6 months. From April 2024 the written statement of particulars (day-one right) must specify whether there is a probation period + its length + conditions for successful completion. If the contract doesn't mention probation, you're on full terms from day one - the employer can't retroactively impose one.
Can I be dismissed during probation for any reason?
Largely yes, but with three significant exceptions. (1) Discrimination - dismissal based on a protected characteristic (age, sex, race, religion, sexual orientation, disability, gender reassignment, pregnancy/maternity, marriage/civil partnership) is unlawful from day one under the Equality Act 2010. (2) Whistleblowing - dismissal for a protected disclosure is automatically unfair from day one. (3) Family rights - dismissal for taking maternity / paternity / shared parental leave is automatically unfair. Everything else: employer can dismiss with contractual notice (often 1 week during probation) without needing the "fair reason" test.
Can my employer extend my probation?
Only if the contract gives them that power. Standard probation extension clauses allow 3-month extensions, typically once or twice. If you complete the original probation without extension being formally communicated, you pass automatically. Beyond a total of 6 months, employer leverage diminishes - longer probations are sometimes challenged as unfair. The Employment Rights Bill includes a proposed 9-month statutory maximum probation period (subject to commencement).
What notice am I entitled to during probation?
Whatever the contract says, with a statutory floor. The minimum statutory notice (Section 86 ERA 1996) is 1 week's notice once you've completed 1 month of service - this applies during probation. From the employee side, the same 1 week minimum. Most contracts during probation give 1-2 weeks. After successful probation, notice typically jumps to 1-3 months. Watch for asymmetric notice (longer from you than from them) and negotiate symmetric notice before signing - see our employment contract red flags guide.
Do I accrue holiday during probation?
Yes - holiday accrues from day one. Statutory entitlement is 5.6 weeks per year (28 days for a 5-day-a-week worker, including bank holidays) under the Working Time Regulations 1998. You accrue at 1/12 of the annual entitlement per month worked. Some employers restrict when probationers can take holiday (e.g. "approval required, capped at 5 days in first 3 months") - lawful as long as it doesn't prevent reasonable use of accrued holiday. On leaving (whether you pass probation or not), any accrued unused holiday must be paid in lieu.
What about sick pay during probation?
Statutory Sick Pay (SSP) applies from day one of employment - no service requirement. SSP for 2026/27 is £123.25/week (subject to April uprating), payable from the first day of sickness for up to 28 weeks (the Employment Rights Act 2025 removed both the 3 waiting days and the Lower Earnings Limit earnings gate from 6 April 2026, so all employees now qualify regardless of earnings). Many employers have "occupational sick pay" schemes paying full salary for some period - these often EXCLUDE probationers explicitly. Read your contract: if occupational sick pay is restricted to post-probation, you're on SSP alone if you fall ill in the first 3-6 months. See our SSP guide.
Can I take parental leave during probation?
Yes - the right to maternity, paternity, adoption and shared parental leave is from day one. However, statutory parental PAY (SMP, SPP, SAP) requires 26 weeks continuous service to be eligible. So a new starter who falls pregnant in month 1 has the right to leave but may only receive Maternity Allowance (state benefit) not SMP. From mid-2026 the Employment Rights Bill proposes day-one paternity leave - check status at the time. See our SMP guide.
What if I think my probation dismissal was discriminatory?
You have 3 months minus 1 day from the dismissal date to start ACAS Early Conciliation (free statutory step) and then file an Employment Tribunal claim under the Equality Act 2010. Discrimination claims have NO service requirement - you can claim from day one of employment. Burden of proof: you must show facts suggesting discrimination; then the employer must show a non-discriminatory reason. Compensation is uncapped (unlike unfair dismissal which is capped at lower of 52 weeks pay or £123,543 statutory maximum for 2026/27, subject to April uprating). Practical: dismissal letters during probation are sometimes drafted carelessly and inadvertently reveal discriminatory reasoning - keep all communications.
Will the Employment Rights Bill make unfair dismissal a day-one right?
The Bill includes a proposal for a "statutory probation period" of 9 months during which a modified, lighter unfair dismissal process applies. Beyond that 9-month period, full unfair dismissal protection would apply from day one (replacing the current 2-year qualifying period). As of mid-2026 the Bill is in stages of parliamentary scrutiny - commencement dates vary by provision. Check the latest gov.uk Employment Rights Bill status for confirmed commencement.