You may have heard people say they are “working their probation” and it is very common for employment contracts to contain a probationary period clause but, what exactly is this and, how does it work? We look at the legal issues around probationary periods for both employees and employers.

Do all new employees have to work a probationary period?

There is no law which states that all new employees must work a probationary period, indeed the phrase is not a term of art and has no special legal meaning. A probationary period will only apply to someone if it is included in their contract of employment. The starting point is therefore always what does the employment contract actually say? This will vary from employer to employer.

What does it mean if I have a probationary period in my employment contract?

Many employers include a probationary period clause in their employment contracts to ensure that the person they have recruited is the right person, with the right skills and capability, to do the job required. This is generally understood to be the time during which a person is under some scrutiny by the employer and must therefore “make a good impression”.

Legally however, probationary clauses simply give the employer the right, during a specified period of time, to terminate the employment on short notice (often a week or less). Once a probationary period has been successfully completed the employee usually becomes entitled to a longer period of notice from the employer.

In addition, probationary clauses often provide that an employer does not have to follow its usual dismissal procedure when terminating the employment of someone on probation.

During probation, an employee may not be entitled to all the contractual benefits – such as private medical insurance – that permanent employees enjoy.

How long should a probationary period last?

There is no set time enshrined in law but, between 3 and 6 months is usual. The actual length is likely to depend on the nature of the job.

Can my employer extend my probationary period?

It is common for probationary clauses to contain a power for the employer to extend the probationary period in appropriate circumstances but, this comes down to how the clause is drafted. If there is no such wording in the contact then the employer can only extend probation by agreement. However, it may be in the individual’s interest to agree to this in order to have more time to prove themselves.

Where an employer is extending a probationary period it should be clear about the improvements required and the standards the employee is required to meet in order to pass their probationary period, together with the training and support which will be offered by the employer to help them get there.

Ideally the employer would have had reviews with the employee and given feedback regarding performance throughout the probationary period so it should not come as a shock if the probationary period is extended.

How do probationary periods work with the statutory right to minimum notice?

The Employment Rights Act 1996 provides that all employees are entitled to receive a minimum amount of notice of termination from their employer. However, this right only kicks in after one month’s continuous employment. Employees in their first two years of employment are entitled to receive one week’s notice of termination. Thereafter the amount of notice increases by one week for every completed year of service, up to a maximum of 12 weeks. A probationary period clause cannot override these minimum periods.

Should my employer tell me that I have passed my probation?

Ideally, confirmation that the probationary period is over and the appointment is permanent should be given in writing to provide reassurance for the employee. However, there is no legal requirement for this and, often in practice, employers operate on the “no news is good news” principle so that employment simply carries on and becomes permanent almost by default, once the probation period has expired.

If my employer wants to terminate my employment during my probationary period, does it have to follow a formal procedure?

Probationary clauses often specifically exclude the operation of an employer’s formal disciplinary/performance procedures. If this is not the case and procedures are contractual, rather than non-contractual, then an employee will have a breach of contract claim if they are not followed.

Many employers take the view that they will not follow the ACAS Code of Practice in Disciplinary and Grievance Procedures for employees on probation and there is no direct legal obligation on them to do so.

If my employer terminates my employment during my probationary period, can I challenge it? 

An employee on probation may not be covered by their employer’s formal disciplinary or grievance procedures but, it would still be worth asking the employer to consider an appeal/grievance in respect of the dismissal if the employee feels they have been unfairly treated.

An employee cannot bring a claim of ordinary unfair dismissal until they have been continuously employed for two years or more. However, there is no such limit on claims for some claims of automatic unfair dismissal and discrimination. Therefore, if  an employee feels that their dismissal was tainted by discrimination in some way, then they could bring a claim in the employment tribunal and, there is now no charge for bringing such a claim.



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