Do new employees in probationary periods have rights?
Yes. They have statutory rights as all other employees. However, whilst in probation, employees may have less generous contractual terms such as, not having access to company benefits or a shorter notice period.
How long can a probationary period be extended for?
The wording of this contractual provision is important, but generally, up to 3 months is advised. A longer extension period runs the risk of both parties losing confidence.
The employer should ensure the contract of employment gives them the power to extend the probationary period; otherwise to extend would be a breach of contract. The employer should be aware of the risk of discrimination or subjecting the employee to a detriment, mainly where the employee has been absent due to pregnancy, family-related leave or sickness (where there is an underlying health condition that may be a disability).
Can we dismiss an employee before the end of their probation period?
Yes. Probation periods are purely a contractual matter. The probationary period's purpose is simply to enable the employer to monitor and appraise the probationer in the initial stages of their employment to ensure that the required standards of performance and conduct are being reached. Equally, the employee will be assessing whether they are a good fit for the role.
Where an employee changes role during their employment at the company, do they require a probationary period in the contract?
In most employment contracts, the main feature of probation periods is the contract can be terminated at short notice by either party. Where an existing employee changes roles, the situation is more complicated. For example, if a current employee has more than two years' service, they cannot quickly be dismissed if they take on a new role and are not immediately effective in it. This is because, by this time, they will have built up enough service to gain protection against unfair dismissal and could take their employer to an Employment Tribunal. So realistically, probation periods are not an available option for longer-serving employees.
What should I do next?
If you need advice, have a specific question on probation periods or employment contracts, please contact Sean Lovett, our Lead HR Advisor.
First Published 25 January 2021
Last Updated 25 January 2021
25 January 2021
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