What Happens If You Fail a Probation Period?
Most employees on probation do not yet have two years' service and have limited unfair dismissal rights. However, dismissal must still be handled properly and some day-one rights apply.
Quick Answer
Failing a probation period usually means your employer ends your employment. You are entitled to your contractual or statutory notice pay. You are unlikely to have unfair dismissal rights unless you have been employed for at least two years, but you retain all day-one rights — including protection from discrimination, unlawful deduction from wages, and automatically unfair dismissal.
Full Explanation
A probationary period is an initial period of employment — commonly three or six months — during which the employer assesses the employee's performance and suitability. The probationary period has no special legal status in itself: an employee on probation is an employee from day one and accrues all statutory rights from the date employment begins.
However, the key practical consequence of failing probation is that most employees will not yet have reached two years' continuous employment, and therefore cannot bring a claim for ordinary unfair dismissal. This means the employer can dismiss for almost any reason without triggering tribunal liability — provided the dismissal is not for one of the automatically unfair reasons or a discriminatory reason.
If you are dismissed during probation, you are entitled to: statutory minimum notice (one week after one month's service) or your contractual notice, whichever is greater; your full salary and accrued holiday pay up to and including the last day of employment (or notice period if given); any benefits owed under the contract. Failure to pay these amounts is a breach of contract regardless of probation status.
All employees, regardless of length of service, are protected from day one against: dismissal related to pregnancy or maternity; dismissal for making a protected disclosure (whistleblowing); dismissal for asserting a statutory right; dismissal for trade union activities or membership; and dismissal that amounts to unlawful discrimination on grounds of race, sex, disability, age, religion, sexual orientation, or gender reassignment under the Equality Act 2010.
If you believe your probation failure was a pretext for discrimination (for example, you were dismissed shortly after disclosing a pregnancy or disability), you should seek legal advice immediately as you may have a strong day-one claim regardless of probation status.
Legal Basis
- §Employment Rights Act 1996 (notice entitlements and day-one rights)
- §Equality Act 2010 (discrimination from day one)
- §Working Time Regulations 1998 (holiday pay)
What To Do
Request Your Final Pay and Holiday Pay
Ensure your final payslip includes all accrued but untaken holiday pay. Use the formula: (days accrued ÷ total annual entitlement) × annual salary. If your employer deducts amounts not permitted by your contract, you can bring an unlawful deduction from wages claim.
Check Whether a Discriminatory Reason Is Involved
If the real reason for dismissal relates to a protected characteristic (pregnancy, disability, race, etc.) rather than your performance, you may have a day-one discrimination or automatic unfair dismissal claim regardless of probation.
Appeal if the Contract Allows
Some employment contracts and handbooks provide a right of appeal even during probation. If so, exercise it — it gives you an opportunity to set out your case and may result in reinstatement or an extension of probation rather than dismissal.
Request References and P45
Your employer must provide your P45. While there is no legal obligation to provide a reference, most employers will provide a basic factual reference. Request one in writing.
Seek Legal Advice If Discrimination Is Suspected
Contact ACAS, Citizens Advice, or an employment solicitor. If you have a discrimination or whistleblowing claim, notify ACAS for Early Conciliation within three months less one day of dismissal.
Important Deadlines
Important Warnings
Probationary periods that extend beyond two years do not prevent you from accruing unfair dismissal rights — length of service is calculated from the first day of employment, not from the end of probation.
Some employers include extended probationary periods in contracts — these are common but the legal protection thresholds run from day one regardless.