Yes you read the title correctly. There is no such thing as a probationary period in law. Most employers include a probationary period of 3 to 6 months in employment contracts for new employees.
It is a common misconception with both employers and employees that passing a probationary period means that the employee is ‘safe’. However, the truth is that UK Employment Law has no regard or concern for the customary probationary period.
So… there are no rights for employees before 2 years?
Not quite, there are certain rights that staff receive on day one or before employment regardless of probationary periods. These include protection from discrimination, protection against poor treatment following whistleblowing and the ability to ask for a statutory right such as holiday pay, wages or asking about health and safety. These rights allow an employee to sue and employer if at any time regardless of length of service.
What is the safe period?
On balance the law provides its own ‘probationary period’ of 2 years or 103 weeks. Legal and HR professionals call this a qualifying period. In simple terms, staff with less than 2 years continuous service cannot sue their employer for things such as unfair dismissal unless it is as result of the things in the previous paragraph.
This means that employees are not safe until they have completed 103 weeks of service. It means that employers can dismiss employees that they believe to be unsatisfactory at anytime before the two years. It also means that employers do not have to wait until the end of a probationary period to decided whether or not the employee is a good fit for their business.
Should I still include probationary periods in my contract?
Yes, it is still good practice to include a probationary period in your employment contracts. This tells the new member of staff that you will be monitoring them more closely during this period. It also encourages you to give the new staff member time to find their feet before you start reprimanding them.
What choices do I have at the end of a probationary period?
In an ideal world you would have been monitoring the new member of staff before the end of the probationary period. Whether you have been monitoring the employee throughout the probation period it is a good idea to have a probationary review to assess the strengths and weaknesses of the employee and how they fit into your team.
If the staff member is great you can tell the employee that the probationary period was a success. If the employee shows promise but you are still not quite sure you can extend the probationary period. If the employee is the wrong person for the job or your team you can dismiss them with notice.
How can I get this right?
This blog is not intended to constitute legal advice. Employers and employees may have circumstances which are not explored in this article.
Of course the best way to have peace of mind that you are doing things correctly is to take advice. If you would like to find out how we can help you visit www.orchardemploymentlaw.co.uk or email firstname.lastname@example.org