A probationary period is a trial phase that allows employers to evaluate an employee's performance and suitability for a role. Typically lasting up to six months, this period is designed to assess whether the employee can effectively fulfil their assigned tasks, adhere to company policies, and integrate within the company culture. The terms of the probation should be clearly outlined in the employment contract or offer letter to avoid any disputes.
Employee rights during probation
Basic statutory rights
During the probationary period, employees retain several basic statutory rights from day one, including:
National Minimum Wage: Employees are entitled to receive at least the national minimum wage.
Statutory Sick Pay: Employees are eligible for statutory sick pay if they meet the qualifying conditions.
Protection from discrimination: Employees are protected from any form of unlawful discrimination under the Equality Act 2010.
Protection from automatic unfair dismissal: Employees cannot be dismissed for reasons that are automatically unfair, such as discrimination or whistleblowing.
Reasonable adjustments: employers have a duty of care to make reasonable adjustments for eligible disabled individuals.
Enhanced rights
Enhanced rights, such as private medical care and extended notice periods, are generally only available once an employee's probationary period has ended. During probation, employees are not protected from ordinary unfair dismissal, which requires two years of continuous employment to bring a claim (NB: Labour’s proposed changes aim to extend unfair dismissal protection to employees from their first day of employment. This significant shift means that new starters will be protected from unfair dismissal immediately, eliminating the current two-year qualifying period).
Disciplinary action during probation
Informal and formal actions
Employers may take various actions if performance or conduct issues arise during the probationary period:
Minor issues: These can often be resolved informally through a chat or verbal warning. Regular probation review meetings can help identify and address such issues quickly.
Serious Issues: For more severe problems, the employer may extend the probation period, initiate formal disciplinary proceedings, or consider dismissal. Employers must follow a fair and lawful process, including conducting thorough investigations and allowing employees to explain themselves.
Notice periods
If an employee is dismissed during the probationary period, they are entitled to their minimum statutory notice period. For employees with one month to two years of continuous employment, this would be a minimum of one week's notice. However, if the employment contract specifies a longer notice period, the employer must honour it unless the dismissal is for gross misconduct.
Extending a probationary period
Conditions for extension
An employer may wish to extend an employee's probation period for several reasons, such as insufficient time to assess performance or ongoing conduct concerns. Whether the period can be extended depends on the terms set out in the employment contract. If the contract includes a clause allowing for an extension, the employer can extend the probation period. If no such clause exists, the employer must seek the employee's prior agreement to extend the trial.
The right to extend probation periods must be clearly set out in writing before the start of the probation period.
Additional considerations
Fair and transparent processes
Employers should ensure that probationary periods are managed with fair and transparent rules and processes. This includes setting clear targets and goals, providing regular feedback, and documenting all discussions and decisions. Employers should also be aware of the potential for disputes and take steps to mitigate risks, such as having written acceptance of employment terms and capturing the real start date in HR systems.
Legal Risks
Employers must be cautious to avoid falling foul of employment laws, particularly regarding discrimination and unfair dismissal. Even during probation, employees have certain basic statutory rights, and any dismissal must be based on genuine grounds and follow a fair process. Failure to comply with these requirements can result in costly tribunal claims.
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