It's quite common for an employee's contract to include a probationary period to give the employer time to assess their suitability and capability for the role.

The aim of a probationary period is to give new starters every possible opportunity to succeed through training and regular structured reviews. At the same time, if for any reason they prove not to be the right fit, it is easier for the employer to let them go.

Here are 5 key things employers and managers need to know about the use of probationary periods.

1. How should probationary periods be worded within a contract?

It is important for probationary periods to be well drafted.

Typically, the employee’s contract will say that in the first X months, the employee will be subject to a probationary period where their performance and conduct will be monitored and assessed. If they meet the expectations of the role in line with the induction plan you have developed, as well as other company standards (conduct, attendance, etc.), their continued employment will be confirmed. If they don’t, their probationary period will be extended. It will also state the notice period should either party wish to terminate the employment relationship.

The length of the probationary period will generally vary between one and six months. You may be able to assess someone’s competence and fit for a junior role relatively quickly, while more senior roles may warrant a longer probation period.

2. Do employees on probationary periods have rights?

There is a dangerous assumption that an employee doesn’t have any rights until they have successfully completed their probationary period. This isn’t true; statutory rights will depend on length of service, not whether they have passed their probationary period.

For some rights, the employee must have worked for you for a specific length of time. For example, an employee must have 26 weeks’ continuous service in order to request flexible working. Other rights employees will receive them from day one of employment. Annual leave, for instance, accrues from day one.

Often, contracts will state that employees are not entitled to contractual or company benefit schemes until they have completed their probationary period.

3. How can we monitor the employee's performance?

You should assess the employee throughout their probation period to ensure that they are reaching the required standards. This is also an opportunity to offer advice and guidance on areas for improvement, as well as find out what additional support they need. It is advisable to have a mid-probation review to explain in what areas they are progressing well and what areas they need to work on. Remember to set clear, realistic targets.

4. Can you terminate employment in the probationary period?

If the employee does not successfully pass their probation, you may need to terminate their contract.

In most cases, an employee will need to have at least two years’ service to be able to submit a claim of unfair dismissal to an Employment Tribunal. However, there are some exceptions to this general rule. For example, if the main or sole reason for dismissing an employee during their probationary period is that they are pregnant, the dismissal will be considered automatically unfair regardless of the employee’s length of service. For this reason, despite what employers often assume, firing an employee during their probation period is not always risk free.

5. What is the minimum notice for dismissal during an employee’s probation?

Any employee who has been employed on a continuous basis for one month or more (but less than two years) must be given the statutory minimum of at least one week’s notice to terminate their employment. You may wish to set a longer notice period to allow time for you to arrange sufficient cover or find a replacement.

If your usual notice provision is four weeks, it may be preferable to have a shorter, two-week notice for employees in their probationary period. Provided statutory minimum requirements are met, this will be a decision based on what is right for your business.

In a probation predicament?

If you’ve encountered a problem in the early stages of employment, our Employment Law specialists can help you to move forward with minimal disruption and legal risk.

Whether you need an expert eye on your contracts or step-by-step guidance through a probation dismissal, call us on 0345 226 8363 for simple, pragmatic advice.

Tired of overly-cautious advice on standard employment processes like these?

"With our previous provider, standard employment processes such as probation dismissals became laborious and decisions were often overly-cautious due to the self-insurance model, increasing the possibility of having to keep on employees who were unsuitable. With Ellis Whittam, we are able to make quick, commercial decisions."

Jonathan Green, COO, Choice Care

Director of Legal Services

James Tamm

Whether you’re facing an immediate challenge or just want the reassurance of an expert second opinion, we’re here to offer clear, commercial advice so that you can focus on what you do best.

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