Probation Period Traps in Indian Offer Letters

Is one-sided notice during probation legal?

The most common pattern is an employer able to terminate on very short notice, sometimes a week or with immediate effect, while the employee remains bound to a longer period, occasionally the full post-confirmation notice of 60 or 90 days. The justification offered is that probation is a mutual assessment period, but the drafting usually makes it mutual in name only.

This is generally a contractual allocation rather than a statutory requirement, which means it is negotiable. Asking for the notice periods during probation to match, or at least for yours to be reduced to the employer's, is a reasonable request and a revealing one.

Here is how it plays out in rupees. Take an offer of ₹12 lakh a year, so roughly ₹1 lakh a month. The letter gives the employer 7 days' notice during probation but requires 90 days from you, with salary in lieu. If you receive a better offer in month four and want to leave, the employer may ask for about ₹3 lakh as notice pay. If it lets you go, it pays you a week. A clause providing 15 days each way reduces your exposure to about ₹50,000 and costs the employer nothing it would otherwise use.

If an employer does try to recover a large sum when you leave, how much it can actually claim is a separate question. Under Section 74 of the Indian Contract Act, 1872, a court awards reasonable compensation not exceeding the amount stated, rather than treating the stated figure as automatically payable.

Can my employer extend probation indefinitely?

Watch for language allowing the employer to extend probation at its discretion, particularly where no maximum is stated. A clause permitting extension "as the company may decide" leaves you on probationary terms indefinitely, which matters because the other probationary terms are usually less favourable.

Equally important is what happens at the end. Many contracts provide that confirmation follows a written communication, and then no such communication is ever issued. Courts have generally drawn a distinction here: where the rules or contract fix a maximum probation period, continuing someone in service beyond it can point towards confirmation, but where there is no maximum, continuing in service does not by itself confirm you. That is exactly why a defined maximum matters.

Asking for automatic confirmation on completion, unless extended in writing with reasons before probation ends, removes the ambiguity.

What else changes during probation

• Leave entitlement, which is frequently reduced or unavailable until confirmation, subject to any minimum leave under your State's law.
• Notice period, usually shorter for the employer and sometimes not for you.
• Benefits such as group health insurance, which may commence only on confirmation. Check whether you are covered from day one.
• Variable pay eligibility, which is often excluded or pro-rated for the probationary period.
• Bond or training-cost obligations, which usually apply from day one regardless of confirmation.
• Performance review criteria, which are often unstated, leaving the decision to confirm entirely discretionary.

Clause by clause: what to ask for

You do not need to ask for everything in this table. Pick the two or three clauses that create real exposure for you. For someone leaving a secure job, that is usually notice symmetry and deemed confirmation. For someone relocating to a new city, it is usually the recovery terms and when insurance starts. A short, specific request sent by email at offer stage is far more likely to be accepted than a marked-up contract.

The State and Labour Code layer

Probation and notice sit alongside the law of the State where you work. Most office employees are covered by their State's Shops and Establishments legislation, which sets minimum requirements on working hours, leave and in some States notice, and those requirements vary. Delhi, Karnataka, Maharashtra, Telangana and Tamil Nadu each have their own Act, and some States have recently amended or replaced theirs, so coverage thresholds differ.

The four Labour Codes came into force on 21 November 2025. Central rules have been notified, but State rules are at different stages, so how the Codes interact with your State's law depends on where you work. The Occupational Safety, Health and Working Conditions Code, 2020 requires employers to issue an appointment letter, which is a good moment to have the probation terms written down clearly.

In industrial establishments above the threshold in the Industrial Relations Code, 2020, standing orders govern matters such as classification of workers and probation, and an offer letter is read with them. Retrenchment protections under that Code generally depend on at least one year of continuous service, which most probationers have not yet completed.

That is why a general answer to "what is the maximum probation period in India" is unreliable. The contract and the applicable State law together determine it, so the sensible check is against the law applying where you actually work.

Sample wording to propose

If the offer letter is vague, a short replacement clause usually solves most problems. Something along these lines is reasonable for most private-sector roles:

"The Employee shall be on probation for three months from the date of joining. The Company may extend probation once, by up to three months, by written notice given before the probation period ends, stating its reasons. If no such notice is given, the Employee shall be deemed confirmed on completion of probation. During probation, either party may terminate employment by giving fifteen days' written notice or salary in lieu."

Employers sometimes resist deemed confirmation. A fallback is a firm obligation to communicate the confirmation decision in writing within a stated number of days after probation ends.

What should you do if probation is going badly?

Probation ends badly more often through silence than through a formal decision. If you sense a problem, act early rather than waiting for the last week.

First, ask your manager in writing for the criteria on which confirmation will be decided, and for specific feedback. A short email creates a record and often produces clearer targets. Second, keep copies of your goals, appraisals, appreciation emails and anything that shows the work you delivered. Third, check the clause for the exact notice the employer must give and whether it may pay salary in lieu.

If you receive an extension, check that it complies with the clause: whether it was given before probation ended, whether it is within any stated maximum, and whether reasons were given. If you are terminated, ask for a written letter stating the date, the notice or pay in lieu, and the full and final settlement. Under Section 17(2) of the Code on Wages, 2019, wages are payable within two working days of removal or dismissal, so a long delay is worth raising in writing.

Finally, ask for a relieving letter and experience certificate. These matter more for your next job than the dispute itself, and employers usually issue them without argument when asked politely and promptly.

Before you accept

Ask for four things: a defined maximum probation period, automatic confirmation on completion unless extended in writing, notice symmetry during probation, and clarity on when benefits and leave commence. None of these is an unusual request and each removes a specific ambiguity.

Also read the probation clause together with the rest of the letter. A short employer notice during probation combined with a long bond, a non-recoverable relocation advance or a clawback of the joining bonus can leave you paying to leave a job you were asked to leave. Ask the employer to confirm in writing that no recovery applies where it ends your employment during probation.

Do it before you resign from your current job. Once you have resigned, your bargaining position drops sharply, and most employers are far more flexible at offer stage than after joining. Get the agreed changes into the signed letter or a written email confirmation from HR, not a verbal assurance.

If you are joining from a stable role, the probation clause deserves more attention than the compensation table, because it governs the period in which your position is weakest.