Many employers require new employees to complete a “probationary” or “trial period” at the start of their employment before the appointment will be confirmed. This is to allow time for both the employee and employer to assess the suitability of the position during a specified time period.
It should be made clear when an offer of employment is made that the offer is subject to employment confirmation at the end of a probationary period and the employer should specify the length of the probationary period, what training and support will be available, what is expected of the employee during this time and how and when reviews will take place. There is no law specifying the length of a probationary period but it should be reasonable and is usually for a period between three and six months.
The fact that an employee is in a probationary period does not mean that they have no statutory employment rights. As with all other employees they are entitled to the national minimum wage, rights covered by the working time directive, statutory sick pay and family related rights such as those relating to maternity, paternity and time off for dependants.
Dismissal at the end of or during a probationary period is not necessarily fair and the usual test of “reasonableness” still applies. While the employee cannot claim unfair dismissal for the first two years of employment, if a fair dismissal process is not followed the employee may be able to claim “wrongful” dismissal for which there is no qualifying period.
It is therefore important that the correct training is given, regular reviews take place and proper procedures are followed when dealing with any misconduct. Claims can be made for harassment and dismissal due to discrimination or whistle blowing. Complaints or grievances should be investigated and where the employee has a disability or sick absence relating to a disability reasonable adjustments should be made.
If the contract allows for the probationary period to be extended this can only be done for a short period and specific reasons for the extension given. One reason for this may be because the employee has had a period of absence and therefore not had the opportunity to complete the objectives outlined at the start of the employment. Where it is is decided that an extension is appropriate this should be explained in writing, outlining the reasons, time period, expectations and support that is available.
If an employee is not told during the probation period that it has been extended or that they have failed the probation then it is assumed that the employment has been confirmed. Where employment is not going to be confirmed the employee should be invited in writing to meet with their manager and allowed representation by a work colleague or Trade Union Representative.
The manager should outline the reasons why the employee has not successfully completed the probationary period giving the employee the opportunity to present their case and outline any mitigating circumstances. Where employment is then terminated statutory or contractual notice periods apply.