Employees on Probationary Periods – What are their rights?

It’s often commonplace to have a probationary period for new employees as they join the business. As an employer, it is a useful way to ensure that the employee is right for the role and duties. For the employee, it can be a time to consider whether the role is right for them. However, it does not mean that the employees on probation are without any employment rights.


What are typical probation periods and how should they be used?

This trial period of employment is commonly from three to six months, although they can be as little as one week in short-term contracts. There can also be scope to extend these periods, for example if more training is needed.

Performance reviews at monthly periods throughout this time should be given as they are key to the opportunity for feedback. It gives both the employee and employer an opportunity to discuss any concerns and address them before the employee completes their probation. It really cannot be fair to suddenly decide that an employee is not suitable right at the end of the probation period, having had no discussions with them.

What rights do employees on probation have?

Probationary periods do not have special statutory status. In law, an employee’s length of service determines their statutory rights, not their probationary status. Employees who are on probation enjoy the same statutory employment rights as other staff, such as national minimum wage, statutory sick pay and rights under the working time rules.

Some family-related leave and rights also apply in the same way. Employees on probation are entitled to take time off for antenatal and adoption appointments. A pregnant employee on probation is entitled to maternity leave and may qualify for statutory maternity pay. She cannot be required to wait for her probationary period to end before starting her maternity leave.

Are probationers protected against unlawful discrimination?

Their rights are the same as other employees; therefore they are protected against unlawful discrimination, detrimental treatment for asserting a statutory right and automatically unfair dismissal.

This includes disability discrimination, so any employer with an employee on probation with a disability needs to make reasonable adjustments to allow them to work efficiently and comfortably.

What if you need to dismiss an employee during their probation?

Employees do not need a minimum period of service to claim that their dismissal was for an automatically unfair reason (such as for asserting a statutory right) or that it was based on unlawful discrimination. You need to ensure that, if you are dealing with a disciplinary or performance issue during a probationary period, particularly one that could result in dismissal, you demonstrate that you had genuine reasons and evidence for your actions. Therefore, following a process that includes an investigation and input from the employee is best practice before such cases arise.

What if an employee does not pass probation?

If an employee does not pass, you may have to terminate their contract. Here statutory notice applies as a minimum, but if your employment contract states a longer period you need to comply.

If you need to find out more probationary periods, the rights of employees on probation, or dismissals, contact us today


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