Summary
- A probationary period allows employers to assess a new employee’s performance, adaptability, and cultural fit before committing to long-term employment, and must be set out clearly in the employment contract, including its length and any right to extend it.
- All statutory employment rights apply during a probationary period, including protection from discrimination, the national minimum wage, and statutory sick pay, though employees with fewer than two years’ service cannot bring an ordinary unfair dismissal claim.
- Where an employee fails their probationary period, dismissal must still be handled reasonably, as employees may bring claims for wrongful dismissal or discrimination regardless of their length of service.
- This article explains how employment probationary periods work for employers operating in England and Wales.
- LegalVision, a commercial law firm specialising in advising clients on employment law, outlines employee rights during probation, employer obligations, and best practices for managing the process.
Tips for Businesses
Set clear written expectations at the start of probation, including performance targets, attendance standards, and review dates. Address performance issues immediately rather than waiting for scheduled reviews. Only extend a probationary period if the employment contract expressly permits it, and confirm any extension in writing with reasons and revised expectations.
Probationary periods give employers a structured way to assess new hires before committing to long-term employment, but they come with legal obligations that are easy to overlook. This article explores what probationary periods are, how they work, and the potential forthcoming changes in the employment law space.
What is an Employment Probationary Period?
When an employee starts working for you, you may have a probationary period in place. This allows you to test their ability to perform the job and ensure they are the right fit for your company. Many also refer to a probation period as a ‘trial period’.
Whilst it benefits the employer, a probationary employment period can also help your employee decide if the role suits them. Evidence suggests that including a probationary period makes it more likely that the employee will be successful in the job.
Employment Rights During a Probationary Period
All statutory legal rights which apply to an employee also apply during their probationary period. This includes:
- the requirement to make reasonable adjustments if your employee has a disability;
- the right not to be unlawfully discriminated against;
- receiving the national minimum wage;
- statutory sick pay; and
- maternity and paternity leave.
However, there are some exceptions. Notably, you can often terminate the contract on shorter notice during the probationary period. You may also detail further contractual rights, which may apply differently during a probationary period than when the probationary has ended. For instance, employee benefits. Nonetheless, your employee’s employment contract must state this.
That being said, there are some rights, such as ordinary unfair dismissal, that employees with less than two years of service will be unable to bring. From a commercial perspective, this has tended to mean that you could look to dismiss employees without two years of service more easily.
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What is the Length of an Employment Probationary Period?
As a probationary period is not a legal requirement, there are no rules regarding your employee’s probationary period length, though you should choose a reasonable length of time. For new employees, probationary periods are usually no more than six months. You will need to detail the length of your employee’s probationary period within their employment contract.
It is possible to extend your employee’s probationary period in some circumstances. You may require this if you need more time to decide whether the employee is suitable for the role. However, you can only extend your employee’s probationary period where their employment contract states that you can do this. If you extend an employment probationary period, you should state in writing the:
- reason for extending;
- length of the new period;
- expectations you have of your employee; and
- support available to them.
Learn how to manage employment disputes and protect your business from legal action.
Expectations of Employment Probationary Periods
The start of your employee’s probationary period is often the beginning of their employment with your business. Therefore, it is good practice to set out the values of your business.
You should set out:
- what you want your employee to achieve in their role, being specific about what they should achieve;
- attendance standards;
- behaviour standards;
- any training requirements;
- how you will address performance issues; and
- when you will hold probationary period review meetings.
Other Key Points
There are other important matters concerning probationary periods, some of which may not be obvious to you or your employees. Below are some of the critical points regarding probationary periods.
- The date your employee begins their employment with you is their first day at work rather than the day after their probationary period ends.
- You should hold reviews with your employee during their probationary period, which could be weekly or monthly, and you should keep written records of these. It is also good practice for you and your employee to sign the records.
- Where you identify performance issues during their probationary period, you must address those immediately rather than waiting until a scheduled review meeting.
- At the final review meeting, you should let your employee know if their probationary period has been successful and where it has, follow this up with a written confirmation.
- Where an employee has not been successful at the end of their probationary employment period, you can, if you have the contractual right, either extend the period or terminate their employment contract.
- Where you decide to dismiss your employee at the end of their probationary period, you must do so reasonably. While workers with under two years of service cannot being a claim for ordinary unfair dismissal, they could claim wrongful dismissal or submit discrimination claims.
Key Takeaways
As an employer, including a probationary period of employment can be very useful to allow you to test the suitability of someone before committing them more permanently. While a probationary period is not currently a legal requirement, there are rules and expectations. Therefore, you should be aware of these to ensure that you act correctly and fairly towards your employees.
If you need help understanding your employer obligations, LegalVision provides ongoing legal support for businesses through our fixed-fee legal membership. Our experienced employment lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 0808 196 8584 or visit our membership page.
Frequently Asked Questions
If an employee does not meet the required standards during probation, the employer may choose to terminate their employment, usually with a shorter notice period than for regular employees.
Excessive sick leave during probation may be considered when assessing an employee’s suitability. In some cases, employers might extend the probationary period to account for significant absences.
Yes, but only if the employment contract expressly permits it. If you extend the period, you must confirm in writing the reason for the extension, the new period length, your expectations of the employee, and what support is available to them.
Most statutory rights apply from day one, including the right not to be discriminated against, national minimum wage, and statutory sick pay. However, employees with less than two years of service cannot bring ordinary unfair dismissal claims, though they can still claim wrongful dismissal or discrimination.
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