Probationary periods are a trial period at the start of the employment relationship designed to provide the employer with better insight into whether or not a successful applicant is suitable, both for the job role and the business. Here are 5 things HR should know about probationary periods:

  1. There is no legal requirement to include a probationary period in an employee’s contract of employment. They are not mentioned in any employment legislation. 
  2. Probationary periods can be used as an effective tool to monitor performance and conduct in the early stages of the employment relationship. They can focus the employer’s attention, especially if the contractual clause prompts an ‘end of probationary review’ with a requirement that this is ‘passed’ before ongoing employment is confirmed.
  3. Probationary period clauses in the contract of employment commonly include shorter notice periods to allow for a quick exit should the employee turn out to be a bad fit for any reason. They also often disapply the business’s usual disciplinary and performance management processes, ensuring that the employer has the ability to take a more broad-brush decision, unfettered by formal process, if necessary.
  4. Employees do not currently obtain ordinary unfair dismissal rights until they have worked for two years. This means that probationary clauses can generally be followed to dismiss in the early stages of employment with limited risk (although see point 5 below on discrimination and whistleblowing). However, employers should be mindful that all this might change over the next few years. The Employment Rights Bill proposes to introduce a Day-one right to claim unfair dismissal, meaning that traditional probationary clauses (bypassing formal process) may no longer be able to be used. The Bill currently proposes to introduce an ‘initial period of employment’ where a limited formal process may be required where a dismissal is for conduct or performance reasons, but this will be a statutory construct – sitting separately from contractual probationary period clauses – which may need to be re-thought.
  5. Even if a current contract of employment contains a probationary period clause, the employer should be mindful of any potential discrimination or whistleblowing risk if it decides to use the clause to dismiss during the early stages of the employment relationship. This is because discrimination and whistleblowing protection apply from day one of the employment relationship. A probationary period clause does not bypass this.

Speak to Jon Dunkley

Jon is a Partner at Wollens and can advise you. Contact Jon via email jon.dunkley@wollens.co.uk or call 01271 341021.

Jon Dunkley - Wollens Solicitors Devon

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