A probation period is a defined period at the start of employment, typically lasting between one and six months, during which both the employer and employee evaluate whether the role and the working relationship are a suitable match. Despite the probationary status, employees on probation retain their statutory leave rights from the first day of employment. The probation period does not reduce or delay entitlements to annual leave, personal/carer’s leave or other statutory protections.
Key Takeaways
- Statutory leave entitlements apply from day one of employment, regardless of probation status
- Employers cannot withhold or reduce leave during a probation period, though they may set reasonable conditions on when leave can be taken
- The probation period affects the ease of termination, not the employee’s statutory leave rights
What Probation Period Leave Rights Mean for Employers
Many employers mistakenly believe that employees on probation are not entitled to take leave or that their leave entitlements are reduced during the probationary period. This is incorrect. Under the NES in Australia, the Employment Rights Act 1996 in the UK and FMLA in the US, statutory leave entitlements commence from the first day of employment.
In Australia, the NES provides 10 days paid personal/carer’s leave and four weeks annual leave per year for full-time employees. These entitlements accrue from the first day. However, employers can set reasonable conditions on when leave is taken during the probation period, such as requiring a minimum notice period or restricting leave during critical onboarding periods.
In the UK, employees accrue statutory annual leave (5.6 weeks) from the first day of employment. During the first year of employment, leave accrues at a rate of 1/12th of the annual entitlement per month. Employers can require employees to serve a qualifying period before taking annual leave, but this must not exceed the statutory maximum.
In the US, the FMLA requires 12 months of employment before eligibility, but many states provide paid sick leave from day one (e.g. California’s paid sick leave law).
Probation Period Leave Rules by Region
| Country | Rule | Detail |
|---|---|---|
| UK | Employment Rights Act 1996 | Statutory annual leave accrues from day one; employers can set a qualifying period of up to 12 months for taking leave |
| AU | NES under Fair Work Act 2009 | All NES entitlements apply from day one; probation does not delay or reduce leave rights |
| US | FMLA and state laws | FMLA requires 12 months of employment; state paid sick leave laws (CA, NY, CO) apply from day one |
How Probation Period Leave Works in Practice
A Melbourne law firm hires a paralegal on a six-month probation period. Under the NES, the paralegal accrues 10 days paid personal/carer’s leave and four weeks annual leave per year, starting from day one. During the first month, the paralegal requests two days of annual leave for a personal commitment.
The firm’s probation period policy requires new hires to complete one month before taking annual leave, which is a reasonable qualifying period. The paralegal’s request is deferred until the one-month mark, after which it is approved. This approach respects the employee’s statutory rights while allowing the firm to manage onboarding.
After the six-month probation, the paralegal’s employment continues as permanent. No additional leave accrues for the probation period itself, as the entitlements were accruing throughout.
Common Mistakes with Probation Period Leave
- Assuming employees on probation are not entitled to leave, which is incorrect under all three jurisdictions
- Requiring employees to complete the full probation period before accruing leave, when entitlements commence from day one
- Denying leave requests during probation without a reasonable basis, which may constitute unfavourable treatment
- Not documenting the probation period conditions in the employment contract, leading to disputes about what was agreed
- Terminating an employee during probation for taking statutory leave, which may constitute adverse action or unfair dismissal
FAQ
Can employees take leave during probation?
Yes. Statutory leave entitlements apply from the first day of employment in Australia and the UK. Employers can set reasonable conditions on when leave is taken, but they cannot withhold statutory leave entirely during probation.
Does leave accrue during probation?
Yes. Leave accrues from the first day of employment. In Australia, personal/carer’s leave accrues from day one. In the UK, statutory annual leave accrues at 1/12th of the annual entitlement per month during the first year.
Can I be fired for taking leave during probation?
No. In Australia, termination for taking statutory leave may constitute adverse action under the Fair Work Act. In the UK, dismissal for exercising a statutory right is automatically unfair. In the US, FMLA leave is job-protected.
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