Employment law- Probation

What is probation?

If you are on probation at work, you will find yourself on a trial period of employment (usually when you start a role with a new employer) under which your performance will be specially scrutinised, and under continuous review.

What should be the length of the probationary period?

This will depend on what is in your contract of employment, however a typical probationary period is between 3-6 months.

Can the probationary period be extended?

Yes, your contract of employment will usually set out whether or not the probationary period can be extended. If your employer has decided to extend your probation without prior agreement, however, they will be in breach of contract. This means that you would be entitled to a longer notice period if this was supposed to kick in after the initial probationary period has passed. Some employers, however,  will still try to hold you to the shorter notice period even though the probationary period has passed.

In many cases, your employer may seek your consent to increase your probationary period if there is no contractual right reserved in your contract of employment. In practical terms, you are more likely to agree to this when the alternative would otherwise be a dismissal.

What rights do I have during the probationary period?

You have the same statutory employment rights as all other employees, which include:

·       the National Minimum Wage;

·       the right to rest breaks and paid holidays;

·       entitlement to pay slips;

·       statutory sick pay;

·       the right not to be discriminated against;

·       the right to have reasonable adjustments if you are disabled.

What rights don’t I have during the probationary period?

You will probably find that you have less generous contractual terms as compared to your colleagues who are not on probation. For example, you may not have access to full benefits such as bonuses, share schemes or private medical care. You are also likely to find that you are on a much shorter notice period until the probationary period has been passed.

You also do not have the right to claim unfair dismissal for most situations, including in relation to misconduct or poor performance. This is because you need to have 2 years’ employment with the same employer in order to qualify in making such a claim (unless the matter falls within one of the few exceptions where there is automatic unfair dismissal such as exerting a statutory right or making a protected disclosure).

Am I likely to face disciplinary proceedings during my probation period?

Many employers decide not to invoke disciplinary proceedings whilst you are on probation, because you would not usually be able to challenge any procedural unfairness in the employment tribunal (as you need 2 years qualifying service- see above). However, the more diligent employer will still follow a disciplinary process because it is good practise, and also in case you are raising issues of discrimination or that dismissal was for an automatic unfair reason.

What rights do I have if I am pregnant?

Your employer cannot discriminate against you by reason of your pregnancy, as you have protection under the Equality Act 2010. This means you can bring a claim if the reason for termination of your employment following a probationary period is by reason of your pregnancy or a pregnancy- related dismissal.

If you are dismissed because your maternity leave commences before the probationary period comes to an end, and your employer cannot yet assess your standard of work, this could amount discrimination.

What if I have sickness during the probationary period?

If you find yourself with frequent absences from your new role due to sickness, this may make it more difficult for your employer to properly assess your performance and they may be taking a dim view of your reliability in confirming the role going forward.

Your employer does have to be careful, however, as your sickness may be classified as a disability under the Equality Act, in which case you have protection from unlawful discrimination. Your employer should accordingly be properly investigating the reason for your sickness and consider what reasonable adjustments need to be made. This includes consideration in extending the probationary period, or changes to the workplace to see how your disability can best be accommodated.

What do I need to consider if I am being promoted after already having been employed?

If you are promoted into a new role after having previously built up trust with your employer, you may find yourself in a probationary period. This does not come without risks, however. Your old position may have already been filled, so what happens if you do not pass your promotion?

It can be considered unfair for you to be boxed into a corner in this way, especially if you have not been properly supported in your newly promoted role.  You may even feel that you have been set up to fail.

As you are more likely to qualify in making a claim for unfair dismissal however (due to having more than 2 years’ service), your employer will need to tread carefully to avoid a claim. This includes following a fair performance process, offering the necessary support or training, and considering what alternative roles are available (including the initial role you were promoted from).

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