Connect with us

Probation Periods: Considerations for Employers and Employees

19 April 2021

This article provides details and guidance on probationary periods and the rights of both employers and employees during such periods.

What Is a Probationary Period and Why Have Them?

When an employee starts a new role, they may be subject to a probationary or probation period. This a fixed-length trial period at the beginning of an employment relationship which allows an employer to assess the suitability of an employee for the role and ultimately decide whether their appointment will be made permanent or not at the end of the period.

Being subject to a probation period has no bearing on whether the employment relationship has officially started (it starts on your first day of employment) or on an employee’s statutory rights. However, during such a period employees may not be entitled to all of the contractual benefits they might otherwise be (the principal feature in most employment contracts is a smaller notice period during probation, as we discuss below).

What to Expect

An employer is legally obliged to provide an employee with a written statement on or before their first day of employment (this is normally done by way of an employee’s employment contract). Amongst other information, the written statement must detail any probation period.

From the outset, employees should be made aware of the approach the employer is going to take during the probation period. This includes any goals or achievements expected of the employee, standards of performance, whether there will be formal or informal assessments and the dates on which any progress meeting will take place, during which feedback should be given to the employee on their progress.

At the end of the probationary period, the employer will then make a decision as to whether they will keep the employee on, give them notice of termination of their employment or, if provided for in the contract, extend the probation period.

At the end of the probation period, provided that an employee has not been told that the period has been lengthened or that they have not successfully passed it (and been given notice of dismissal), the assumption is that their employment has been confirmed and that the probation period has been completed successfully.

Terms and Scope of a Probationary Period

There is no legal requirement regarding the scope and terms of a probationary period, instead this is usually set out in the employment contract, however there is an expectation that the employer acts reasonably.

The contract should therefore dictate the length of the probation period and whether it can be extended. Typically, probation periods last three or six months (although the length may vary depending on the type of role and time it will take the employer to suitably assess the employee). 

A probationary period can be extended for specific reasons as provided for in the contract. An employer might want to include provisions to extend the period to ensure that the employee has adequate time to show that they can meet the requirements of the role or to allow time for training to help the employee improve. Where the probationary period is extended, the employer should make clear:

  • why it is being extended;
  • the time length of the extension;
  • what standards the employee is expected to have met by the end of the extended probationary period;
  • any extra support which will be provided to the employee during the extended probationary period; and
  • that the employment will come to an end should the standards not be met.

Terms During the Probationary Period

Employees are generally not entitled to all of their contractual benefits during a probationary period than they would otherwise be entitled to once probation is successful. Usually, for example, the employment contract will provide for employment to be terminated on shorter notice during a probation period than the notice an employee would usually be entitled to.

Other benefits an employee might not be entitled to include eligibility for a bonus or the right to additional contractual holiday days.

As stated above, however, an employer cannot waive the employee’s statutory rights during a probationary period. Therefore, an employee’s right to statutory minimum notice, minimum wage, holiday pay and rights under the Working Time Regulations (to name a few) apply in the same way as they do to permanent staff members. 

Conclusion

Whilst probationary periods are not a legal requirement, it is normally advisable for employers to include them in an employment contract as they essentially act as a safety net for employers enabling them to assess the suitability of an employee for a role.

Such periods, however, will not always be appropriate, for example, for senior appointments or short-term contracts. It is important for an employer to structure the probationary period so that an employee is aware of the process and what is expected of them. Additionally, the scope and terms of a probationary period should be clearly set out in writing, otherwise, they may not be enforceable.

This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact Helena Antoniou or write to us using the contact form below.

Practice areas
Key contacts
Richard Berry
Richard Berry
Head of Employment
Helena Antoniou
Helena Antoniou
Junior Partner
Latest newsGet In Touch
Get in touch
How can we help?
Newsletter
Sign up to our monthly newsletter

Complete the form below to receive our latest news, articles and insights delivered straight to your inbox.

We care about the protection of your data. No spam. Unsubscribe anytime. Read our privacy policy for more.
A personal service, tailored to your needs, from an award-winning team
Burlingtons Legal
Innovation
Conveyancing Quality
Legal 500
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram