Starting a new job is an experience filled with both excitement and nerves, both the new employee and employer will undoubtedly experience a mixture of these emotions. A key part of an employment trail is the probation period, but what does this mean in legal terms?

More specifically, is a probationary period part of UK law, or is it simply custom?

This guide sets out to help understand the law for probation periods and the associated rights and responsibilities for the employer and employee.

What is the Probation Period?

A probation period is a defined period at the start of an employment agreement, while both the employer and new employee evaluate if it is a good fit.  

From the employer’s lens, it is a great time to observe the employee’s performance and skills, behaviours, fit for the job, and for the company culture overall. The employer can be assured they made the right decision prior to confirming the new employee in a permanent role.  

The new employee’s perspective is similarly based on “fit”. For instance, do the job, team, work environment, and company meet their expectations and career goals? 

Because, legally speaking, it is an agreement. The terms and conditions of the probation period are as you and your employer have agreed upon and are contained in the employment contract. 

This allows the companies to have flexibility, but on the other hand, they are required to act under general UK employment legislation throughout the process. 

Key Elements Governed by Your Contract

Since probation in the workplace is contractual, the precise rules can be found in your offer letter and employment contract. Consider the following:

1. How Long is the Probation Period: It can vary, but it is commonly 3 or 6 months. 
2. Notice Period: The Notice period for probation in the workplace is usually shorter. For example, a contract might state that during the probation, a one-week notice period is applicable, which increases to one month thereafter. 
3. Review Points: It states when the performance reviews will take place according to the contract. For instance, at the end of the first month and the last month. 
4. Extension Clauses: Most contracts come with this clause. According to this, the employer has the option to extend a probation period for the employee if satisfactory progress has been accomplished, but there may be a need for more time to assess an employee. 
5. Conditions for Successful Completion: The criteria for successful completion of probation may be specified in the contract, such as performance objectives to be achieved or required competencies to be attained. This brings clarity and sets expectations for both parties at the outset.

What Are Your Rights on Probation?

During this trial phase, both parties have significant rights. Let’s discuss these:

Employee Rights

There are certain statutory rights offered to all employees, including those on probation, from day one. These include:

• The National Minimum Wage.
• Statutory minimum rest breaks and holiday entitlement (5.6 weeks per year).
• Safe working environment.
• Protection against discrimination under the Equality Act 2010 (e.g., on the basis of age, gender, race, or disability). This is a significant right. It is illegal to terminate an employee for a discriminatory reason, irrespective of tenure.
• Protection from dismissal because they have exercised a statutory right (e.g., requested minimum wage) or for whistleblowing.

Employer Rights

• The right to anticipate an appropriate standard of performance and behaviour from the new employee.
• The right to terminate the contract relatively easily if the employee is not suitable, if the termination is not for an automatically unfair or discriminatory reason. The shorter notice period in probationary employment assists you with this.

What if You Fail Your Probation?

If an employer thinks the probation is not going well, they should not just suddenly dismiss the employee. Here is a fair and structured procedure for this:

• Informal Discussion: Firstly, you should have an informal conversation to raise your concerns. This provides early intervention and gives the employee an opportunity to resolve any issues without formal action.
• Formal Meeting: If the issues remain, the next step would be a formal meeting outlining the issues. The employee should have the right to be accompanied by a colleague, and the meeting should be put on record.
• Performance Improvement Plan (PIP): Typically, there is a PIP. This details specific, realistic targets for improvement in a set time frame. Also, it provides a structured pathway for the employee to be successful.
• Confirmation of Extension or Failure: Once the PIP period has come to completion, there should be another meeting to discuss progress, at which point the employer will indicate whether the employee has reached the required standard and the employee can pass probation or whether the issues remain unresolved.
• Decision Point: If the employee has not improved, then an employer can choose to end the employee’s contract. They must give the employee the notice period of the contract (or statutory notice if that is longer than the contract). The notice must be given, and a fair process must be followed to avoid a claim for wrongful dismissal (breach of contract).

Can a Probation Period Be Extended?

Yes, if this is provisioned in the contract. Extensions are generally for an employee who has shown promise but did not meet the required standards in the timeframe permitted.

Therefore, the employer would have to put that in writing, specify the date it would extend to, contain the reasons for the extension, and specify the required objectives. 

Final Thoughts

The probation period allows for some flexibility at the employment level, but it is certainly not without the law. Legally, the idea of probation is built on the notion of fairness. An employer who sets clear expectations out for the new employee and provides regular feedback (and has evidence) is on the right path to setting themselves and their organization up for success and drawing in and keeping top talent through a positive work culture.  

Vice versa, a good understanding of the employees’ statutory and contractual rights provides employee satisfaction and empowerment in their position. Hence, ensuring they are being treated fairly while they find their ground and establish their value in the organization.

Frequently Asked Questions