Probation and Gig Workers: UK Employer Guide

The traditional probationary period — a defined phase during which an employee’s suitability is assessed — has long been embedded in UK employment practice. However, the rise of the gig economy, with its emphasis on short-term, flexible engagements, challenges this conventional concept.

For businesses engaging freelancers, contractors, or gig workers, managing initial periods of work in a way that mimics probation can create unintended legal consequences — especially if the working relationship hints at employment status. In this article, we examine how probation-like arrangements interact with the gig economy, what UK law says about employment status, and how employers can safely manage trial engagements without triggering unwanted obligations.

 

The Gig Economy and Its Legal Complexity

 

The gig economy refers to a labour market built around short-term, on-demand roles rather than permanent jobs. Common examples include ride-share drivers, delivery workers, freelance creatives, and task-based service providers. These individuals are typically engaged on a self-employed or zero-hours basis, often through digital platforms, and are valued for their flexibility and independence.

Yet beneath this apparent freedom lies legal ambiguity. Courts and tribunals have increasingly scrutinised the true nature of gig work, particularly where workers are subject to control, supervision, or restrictions more akin to traditional employment. This makes it critical for organisations to clearly understand the legal classification of the individuals they engage — and structure their arrangements accordingly.

 

Employment Status in the UK: The Foundations

 

UK law recognises three main types of employment status:

 

• Employees, who are entitled to the full suite of employment rights, including unfair dismissal protection, redundancy pay, and sick leave.
• Workers, who occupy a middle ground. They are entitled to basic protections such as the National Minimum Wage, holiday pay, and protection from discrimination, but not unfair dismissal rights.
• Self-employed contractors, who operate independently and have very limited employment rights, primarily protection from discrimination and some health and safety provisions.

 

The key point is that probation periods — as a legal concept — apply only to employees. Workers and self-employed individuals are not subject to probation in the traditional sense, because they are not governed by the same contractual framework. Yet businesses often attempt to impose probation-like practices on gig workers, which can be legally risky.

 

The Risks of Applying Probation Structures to Gig Workers

 

Blurring the Line Between Contractor and Employee

Probation is typically a feature of an employment contract. Imposing such a structure on a gig worker may inadvertently signal that they are, in reality, an employee. For example, subjecting a freelance contractor to formal performance reviews, internal disciplinary procedures, or mandatory training can undermine claims of self-employment and tip the balance toward employment status in the eyes of a tribunal.

This has significant implications. If a court determines that someone is, in fact, an employee, the business may become liable for backdated employment rights, including holiday pay, pension contributions, and wrongful dismissal claims.

 

Terminating Engagements: Less Formality, More Risk Awareness

Genuinely self-employed individuals do not have protection from unfair dismissal, meaning their engagement can usually be terminated with minimal notice — subject to contract terms and statutory protections such as anti-discrimination or whistleblower safeguards.

For this reason, probation serves little legal purpose in genuine gig roles. Rather than following employee-style performance management, businesses can usually choose not to offer further work — provided they do so lawfully and without discriminatory motive.

 

Discrimination Still Applies

Regardless of employment status, all individuals are protected under the Equality Act 2010 from discrimination based on protected characteristics, including age, gender, race, disability, and pregnancy. Businesses that terminate or decline to extend work to gig workers after discovering a protected characteristic (e.g., following a pregnancy disclosure) may face legal challenge — even if the individual is not an employee.

 

A Smarter Way: Managing Initial Engagements in the Gig Economy

 

While probation periods may not be appropriate, many businesses still wish to assess suitability before offering ongoing work. The key is to manage this through trial-based arrangements — clearly defined, lawful, and free from employment-style indicators.

 

Use Initial Trial Projects, Not Probation Periods

Instead of referring to a “probation period,” businesses should frame the first engagement as a discrete, outcome-based project or assignment. This might involve asking a freelance designer to complete a single design, or a content writer to deliver a set number of articles.

Importantly, these projects should:

 

• Be clearly defined and time-limited.
• Focus on outcomes, not how or when the work is completed.
• Avoid any language suggesting long-term commitment or integration into internal structures.

 

The contract should reflect this structure — stating that the first engagement is a trial project, and that no ongoing work is guaranteed.

 

Preserve Flexibility in Practice

To maintain self-employed status, both parties should retain genuine freedom. This includes:

 

• No obligation to accept future work.
• No set working hours.
• Freedom to work for other clients simultaneously.
• No requirement to follow internal management processes.

 

The more flexibility is built into the engagement — in practice, not just in writing — the stronger the defence against claims of disguised employment.

 

Be Careful with Language and Documentation

Contractual language matters, but tribunals look at reality. Even a contract that labels someone a “freelancer” or “independent contractor” can be overridden if their day-to-day experience reflects employee control.

Avoid employment-specific terms such as “holiday entitlement,” “probation,” or “line manager.” Instead, use terminology aligned with project-based work — “client briefs,” “deliverables,” “milestones,” and “completion payments.” Keep records of communications and contracts that reinforce the independent nature of the relationship.

 

Objective Evaluation and Equal Treatment

While flexibility is key, assessment of performance is still appropriate. Businesses should evaluate gig workers based on the quality and timeliness of their deliverables — not personality traits or the way they work. Feedback can be helpful but should avoid veering into performance improvement plans or formal supervision.

Consistency also matters. If several contractors are trialled, treat them equally and use consistent criteria for offering further work. This helps guard against claims of discrimination or favouritism.

 

When Gig Workers Drift into Employment

 

Despite careful planning, some gig arrangements gradually evolve into something closer to employment. Risk indicators include:

 

• Requiring regular or scheduled hours.
• Penalising refusal to accept work.
• Supervising work methods closely.
• Prohibiting work for competitors.
• Using HR-style procedures such as performance reviews or formal warnings.

 

These are red flags. Businesses that apply probation-like controls over time may find their “freelancers” reclassified as employees by a tribunal — particularly if the relationship is long-term and the individual is economically dependent on one client.

If probation-style control becomes necessary, it may be time to consider offering formal employment instead.

 

Case Law: How Status Can Be Reclassified

 

Several landmark cases highlight the danger of misclassifying gig workers:

 

• Uber v Aslam (2021): The Supreme Court ruled that Uber drivers were “workers,” not self-employed, due to the level of control exercised over them — including allocation of jobs, pricing, and performance monitoring.
• Pimlico Plumbers v Smith (2018): Despite being labelled self-employed, a plumber was found to be a worker because of obligations to work personally, wear branded uniforms, and follow company procedures.

 

These cases didn’t turn on contracts alone — they hinged on how the relationship operated in practice. Employers who impose probation-like processes or excessive control risk similar outcomes.

 

Practical Example: Managing a Freelance Trial

 

Imagine engaging a freelance copywriter for a content project. To manage the trial phase compliantly:

 

• Offer a fixed-scope assignment (e.g. three articles).
• Set deadlines and deliverables, but allow freedom over working hours and methods.
• Avoid performance meetings, supervision, or mandatory check-ins.
• Pay promptly upon delivery and retain flexibility to engage again — or not.

 

This structure respects the freelancer’s status and allows for a fair assessment without suggesting employment.

 

Conclusion: A Cautious Path Forward

 

In the gig economy, the traditional probation period has limited relevance — and can, in fact, be a liability. Employers must recognise that many of the structures used for employees cannot simply be adapted to freelance or gig roles without legal consequences.

To manage these relationships lawfully and effectively:

 

• Focus on short-term, trial-based engagements with clear deliverables.
• Avoid employee-style controls, processes, or language.
• Ensure contracts and working practices reflect genuine independence.
• Be consistent, fair, and discrimination-aware when evaluating work.

 

By understanding the legal boundaries and designing engagements accordingly, businesses can embrace the flexibility of the gig economy — without unintentionally triggering employment obligations.