What rights do employees have during their probationary period?

News on 17 September 2018

Most people are familiar with probationary periods in employment, but there is often some confusion about how they work and the best way to manage employees during the probationary period.

Here is a summary of the relevant factors with regard to the probationary period

1. Pre-employment

Even before someone has started work, a prospective employee already has certain rights.

When your business posts a job vacancy on a jobs board on-line, with a recruitment agency or even in the window of the newsagents you need to be aware of employment law.

Under the Equality Act 2010, prospective employees have the right not to be discriminated against.

How do you ensure you’re not discriminating?

Have a look at your job adverts. Do do they specify an age bracket, the sex of the candidate, or even how many years’ experience you want someone to have? If they do, you could be leaving yourself open to discrimination claims. Does someone really need to have 5 years’ experience doing that job for them to be able to work for you? Or do you need someone who has good experience and good knowledge? Stating how many years’ experience you need for someone to do the job could be classed as age discrimination.

2. Day One Rights

From the first day of employment, employees have a number of rights that will protect them.

Here’s a selection of those rights:

  • A written statement of particulars
  • An itemised payslip
  • Not to have unfair deductions of wages
  • National minimum wage
  • Not to be discriminated against
  • Equal pay with members of the opposite sex
  • If you are paying national insurance, the right to statutory sick pay
  • Paid time off for medical appointments if the employee is pregnant
  • 52 weeks maternity leave, even if the employee was pregnant when she started the job
  • The right to take a trade union representative or work colleague into a disciplinary or grievance
  • The right to  wrongful dismissal, if  dismissed without the agreed notice
  • Paid holiday entitlement
  • Working Time Regulations – maximum hours per week, rest breaks, and time off between shifts

3. After Four Weeks of Employment

After a month, employees get a few more rights thrown in the mix. They are:

  • Given one week’s notice of dismissal (or more if it says so in the contract)
  • To be paid if suspended on medical grounds
  • To be paid statutory lay off pay if laid off or put on short time working

4. After Eight Weeks of Employment

When you get to this point, your employees are legally entitled to a written statement of particulars. You don’t have to give them a full-blown contract, but you would need to give them this statement. It would include the main terms of their employment; like their pay, what hours they work, when they are expected to come into work, what their holiday entitlement is, and what other benefits you offer, like a pension.

5. The Probationary Period

We’ve established the rights that people have in their first few months as an employee, but what are the rules around probationary periods? Actually, there aren’t any. There’s no law to say how long a probationary period should be. But it should be reasonable. Typically, probationary periods are three months or six months. The important thing to remember is to use that time to train and performance manage your employee.

6. Can you extend a probationary period?

Yes, is the short answer. But you’d really need to look at why you’re extending it. Are you delaying the inevitable? We’d only advise that you extend someone’s probationary period when there’s a good reason to. For example, if your employee was off sick for a month during the probationary period you might consider extending the probationary period by a month to consider allowing them time to gain experience and training in the role.

7. Terminating an employee during their probationary period

There are going to be a number of situations where you’ll need to dismiss an employee before they have finished their probationary period.

If you’ve given the employee  the necessary training and tools to do their job and communicated  how they need to improve and they are  still under performing, then you will need to consider terminating their employment.

If there’s no chance of improvement, or they’ve shown no improvements at all, even though you’ve given them the opportunity to do it, then setting them free might be the right thing to do.  It’s not a nice thing to have to do, but be honest with yourself; can your business carry someone who isn’t performing? Is it fair on your other staff? Is it fair on the individual themselves to allow them to believe that they are performing well?

8. Can I just sack them?

Good practice would be to invite the employee to a meeting to explain the reasons you’ve made the decision to dismiss them. Follow this up with a letter to confirm the decision.  and set out some reasons i.e. “your performance did not meet the standards required”. Failing a probationary period is a difficult situation for you and your employee. Dealing with this situation with empathy and using the right tone can really help keep things under control.

A good way of finding out a bit more about someone you intend to employ, is by sending a reference request to their previous employer. Download our free reference request template