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, dismissal during probation, extending probation, what counts as discrimination, sick pay and holiday accrual during probation, and the unfair dismissal qualifying period - two years today, six months for dismissals from 1 January 2027 under section 25 of the Employment Rights Act 2025.
Rights from day one vs rights that wait
The probation period is a contractual concept - it does not suspend statutory rights. Most employee protections apply from day one. The big exception is general unfair dismissal, which today needs 2 years continuous service and drops to 6 months for dismissals taking effect on or after 1 January 2027.
| 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 today; 6 months where the dismissal takes effect on or after 1 January 2027 | Section 108 ERA 1996, as amended by s.25 Employment Rights Act 2025 from 1 January 2027 (SI 2026/559) |
| 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 continuous service, and will still require 6 months once section 25 of the Employment Rights Act 2025 starts on 1 January 2027. What they cannot do at any length of service:
- 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.
The qualifying period falls to six months on 1 January 2027
This is the change most often misdescribed, so take it in three parts: what applies now, what changes, and what the Act does not do.
Today: two years
Section 108(1) of the Employment Rights Act 1996 still reads: "Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination" (ERA 1996, s.108). If you are dismissed today with less than two years continuous service, you have no ordinary unfair dismissal claim. The exceptions listed in section 108(3) still bite at any length of service: whistleblowing (section 103A, via s.108(3)(ff)), asserting a statutory right, health and safety, pregnancy and family leave, and trade union grounds. So does discrimination, which sits under the Equality Act 2010 and never had a service requirement.
From 1 January 2027: six months
Section 25(2) of the Employment Rights Act 2025 amends section 108 of the 1996 Act: "in subsection (1), for ‘two years’ substitute ‘six months’", and the same substitution in subsection (2) (ERA 2025, s.25). Section 25 was not in force at Royal Assent. It comes into force on 1 January 2027 under regulation 3 of SI 2026/559, and regulation 4 sets the cut-off by the effective date of termination, not the date you were told: the amendments "have effect in any case where an employee is dismissed before 1st January 2027 but the effective date of termination falls on or after that date", and "do not have effect in any case where the effective date of termination falls before 1st January 2027". Section 25(3) also omits section 124 of the 1996 Act (limit of compensatory award), which removes the cap on the compensatory award for the same dismissals. The government's timetable records the pair as "reduction of unfair dismissal qualifying period to 6 months, for dismissals from 1 January 2027, and uncapping compensatory awards" (GOV.UK timeline update).
What the Act does not do
- It is not a day-one right. Six months of continuous service is still a qualifying period. A day-one unfair dismissal right appeared in commentary on the Bill as introduced in October 2024; it is not what section 25 enacted.
- There is no nine-month statutory probation period. The consultation-stage idea of a statutory probation with a lighter dismissal process is not in the Act. Probation remains purely contractual, and no statute caps its length.
- Nothing has changed yet. Until 1 January 2027, treat two years as the live number when deciding whether a claim exists.
Practical effect if you are on probation now: the date that matters is when your employment actually ends. An employee whose notice runs out on 31 December 2026 is on the two-year rule; one whose notice runs out on 2 January 2027 is on the six-month rule. Separately, several provisions of the same Act already commenced on 6 April 2026, including day-one paternity leave and unpaid parental leave (sections 15 and 16) and the removal of the SSP waiting days and Lower Earnings Limit (sections 10 and 11).
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. There is no statutory maximum probation period in UK law, and the Employment Rights Act 2025 did not create one.
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. Paternity leave and unpaid parental leave became day-one rights on 6 April 2026 under sections 15 and 16 of the Employment Rights Act 2025, which removed the qualifying period of employment for each. See our SMP guide.
What if I think my probation dismissal was discriminatory?
The time limit is 3 months less 1 day from the act you are complaining about, and starting ACAS Early Conciliation pauses the clock. An increase to 6 months is already law in Schedule 12 to the Employment Rights Act 2025, but it needs a commencement order and has not been given one, so it does not help you yet. A separate set of regulations does raise the limit to 6 months from 1 October 2026 for a specific list of other claims - part-time and fixed-term worker detriment, blacklisting, zero-hours exclusivity and a few more - and there the date of the act decides, not the date you file. You start ACAS Early Conciliation within that limit, measured from the dismissal date (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.
Does the Employment Rights Act 2025 make unfair dismissal a day-one right?
No. Section 25(2) substitutes "six months" for "two years" in section 108 of the Employment Rights Act 1996. That is a shorter qualifying period, not a day-one right, and the Act contains no statutory probation period. Nor has it started: section 25 comes into force on 1 January 2027 (SI 2026/559 reg 3), and reg 4 applies the six months only where the effective date of termination falls on or after that date. So the qualifying period is two years today. If you are dismissed with under two years service and your employment ends before 1 January 2027, you cannot bring an ordinary unfair dismissal claim.