Probation Period UK Law: Employers’ Guide

Probation periods at work can be valuable in ensuring the compatibility of a new starter to their new role and organisation, but only if managed correctly.

A probation period is a set timeframe at the start of employment during which an employee’s performance, suitability, and conduct are assessed. It serves as an introductory phase, allowing employers to determine whether the individual is a good fit for the role and the organisation. Probation periods are typically outlined in the employment contract and can range from one to six months, though longer periods may be agreed upon.

Employers are not legally required to include probation periods in contracts, but doing so provides greater flexibility during the early stages of employment. During the probation period, employees may have reduced notice periods, and employers can terminate the contract more easily if the individual does not meet expectations. However, probationary employees still have statutory rights, including protection against discrimination and entitlement to the national minimum wage.

Key risks for employers include failing to clearly communicate expectations and performance criteria, which can lead to disputes. Employers must ensure fair treatment throughout the probationary period, following proper procedures for feedback, reviews, and, if necessary, dismissal. Extending a probation period must also be handled carefully, with clear reasons provided.

The following guide for HR, managers and employers focuses on employee rights during probation. We look at how to manage probationary periods in the context of employees’ statutory and contractual rights, from setting targets and goals for new employees, as well as how to address any performance or conduct issues that may arise during the period of probation.

 

What is a probationary period?

 

While employers invest a great deal of time and money in recruiting suitable candidates, they will only really be able to gauge whether or not they have the right person for the role once the successful applicant starts undertaking their actual day-to-day responsibilities.

As such, it is not unreasonable to require new-starters to work a probationary period before making them a permanent or fixed term member of staff. This period is primarily designed to provide the employer with some insight into whether or not the individual is capable of undertaking the job role for which they have been hired and, equally, that they are able to conform to the standards of behaviour expected of them and to fit in with the team.

However, it is important to remember that probation is not just about assessing whether the employee is right for the job, but also about whether the job is right for them. The reason being that you may need to invest heavily in training for that individual and, as such, you will need to feel confident that the employee is not going to leave having had significant levels of funding invested in them.

Not surprisingly, many employers are also reluctant to allow an employee to acquire or accrue enhanced contractual or statutory rights, if they are simply unsuitable for the job in the longer term.

Accordingly, the probationary period is about protecting your financial and business interests, ensuring that you only employ those individuals who are suited to, and likely to stay in, the role if this is offered to them on either a permanent or fixed term basis on completion of the probationary period.

There is no law determining the length a probationary period, although this will usually be for between three to six months. That said, in some cases, this period could be longer or even shorter depending on the nature of the role, for example, where the role is only temporary the period is often much shorter.

 

Setting goals

 

When implementing a period of probation, regardless of length, it is important to put in place some form of agreement, preferably in writing, as to the period of probation and the terms upon which the employee will be required to work throughout this period.

It is also important to set targets and goals during any probationary period so as to provide both parties with some form of reference point, or acceptable threshold, to assess the individual’s suitability for the role.

This could be done in the form of specific key performance indicators (KPI’s) to measure an individual’s progress, for example, the number of new contracts signed or qualified leads obtained, or by way of more general targets, such as receiving positive feedback from the employee’s line manager and co-workers.

 

Monitoring & managing performance

 

In order to effectively monitor and assess an employee’s performance during the period of probation, including any specific targets and goals that may have been set, employees should undergo regular reviews throughout this period.

This will help to provide a clear indication as to how that individual is progressing and giving both parties an opportunity to pinpoint any problems.

The mere fact that issues are raised during the course of any probationary period does not necessarily mean that the employee should be let go. It may simply be that there are some teething problems that need to be addressed, and adjustments need to be made, for example, by way of additional training.

 

Employee rights during probation: dealing with performance & conduct issues

 

It is not uncommon for issues to arise during a period of probation in relation to the performance and/or conduct of the new employee. Perhaps their performance is not at the required standard, or there has been an issue of misconduct or poor behaviour.

The very nature of the probationary period is to provide an opportunity for these types of issues to come to light before you grant a new employee any fixed term or permanent contract of employment that will potentially entitle them to greater contractual rights within the workplace and, with the passage of time, greater statutory rights too.

The manner in which you deal with any issues during the period of probation will depend on the nature and seriousness of the issue and employee rights during probation. In many cases, minor issues relating to underperformance or misconduct may be resolved informally, for example, by way of a simple chat or verbal warning.

In respect of more serious matters, you may want to consider extending the probation period, or you may have to follow formal disciplinary proceedings with the possibility of dismissal.

It is important to remember that even during probation, an employee will still have certain basic statutory rights, not least the right not to be unlawfully discriminated against or unfairly dismissed on grounds that are classed as ‘automatically unfair’. This includes being dismissed for asserting a statutory right, for example, taking leave for family reasons, including pregnancy and maternity, or taking leave for family emergencies or to care for dependants.

 

Disciplinary action during probation

 

When taking disciplinary action against an employee, even an employee on probation, you should do so in a fair manner. You should carry out any necessary investigations to establish the facts and do so without unreasonable delay. You should also notify the employee of the nature of the matter and arrange a meeting to provide the employee with an opportunity to put their side of the story.

Following the meeting, you will need to decide on what, if any, disciplinary action needs to be taken and notify the employee of your decision in writing.

There are various possible courses of action available to you, although where the matter is relatively minor and you are happy to make allowances for the employee’s inexperience or lack of knowledge, for example, in the context of workplace procedures, then a verbal or first written warning may suffice.

In contrast, where the matter is more serious, not least given the context that the employee is on probation, you may want to issue a final warning or even consider dismissing the employee for any poor performance or proven misconduct.

 

Dismissing someone on probation

 

Employees on probation can be dismissed with 1 week’s notice, or whatever the minimum notice period is as stipulated in their employment contract. However, the employer should ensure they have followed a fair and lawful procedure in deciding to terminate their employment.

You should provide the employee with notification of your decision in writing, clearly explaining your reasons for so doing and retaining an accurate written record of any disciplinary investigation undertaken and what action has been taken in response.

The employee should be informed as soon as possible of the reasons for the dismissal, as well as the date on which the employment contract will end and the appropriate period of notice.

It is important to remember that although a minimum of two years service is usually required for an employee to claim unfair dismissal, thereby precluding the probationary employee from claiming that their dismissal was procedurally unfair or unreasonable, there is no minimum length of service for an automatically unfair dismissal or dismissal based on unlawful discrimination.

From day one of employment, regardless of any period of probation, an employee is entitled to any statutory rights that arise automatically, whereby the probationary period has no legal bearing on these rights.

As such, where you are dealing with disciplinary or performance issues during a probationary period, particularly where these matters are likely to result in dismissal, you will need to be able to demonstrate that the grounds for your actions were genuine.

Needless to say, you will be in a much better position to do this if you have carried out a proper investigation and given the employee an opportunity to explain their version of events, and you have a record of what steps have been taken prior to making the decision to dismiss.

 

Minimum notice period for employees on probation

 

The employee, even if dismissed during their period of probation, will still be entitled to a minimum statutory notice period. The legal minimum notice required to dismiss an employee is one week for any individual who has been continuously employed by you between one month and up to two years.

That said, if the contract of employment provides for longer then you must honour this enhanced contractual right.

The only qualification to the employee’s entitlement to a minimum statutory or contractual notice period is where an investigation has resulted in a finding of gross misconduct. In these circumstances, you may be justified in summarily dismissing an employee, in other words, without notice or pay in lieu of notice.

Gross misconduct is an act that is so serious that it justifies instant dismissal for a first offence, for example, physical violence, indecent behaviour, incapacity due to either drugs or alcohol, theft or fraud, misuse of property, serious breaches of health and safety, or serious insubordination.

When dealing with an allegation of gross misconduct, even in respect of an employee on probation, it’s always advisable to undergo a full investigation and fair disciplinary process, so as to protect your interests and prevent the loss of a valuable employee who may be entirely innocent of the matter alleged.

 

Can employees on probation claim unfair dismissal?

 

By law, employees must have a minimum of two years of continuous service with an employer in order to bring an unfair dismissal claim. The exception to this rule is in relation to claims for automatically unfair dismissal, which are on the grounds of reasons such as pregnancy or raising health and safety concerns. Automatically unfair dismissal claims require no minimum service.

 

Tips for managing probation periods

 

Avoid falling foul of employee rights during probation by:

 

• Deciding on the appropriate length for a probationary period from the outset
• Including a clear contractual provision to extend this period, where appropriate, outlining the special circumstances in which this can be done
• Determining the contractual terms that will apply during a probationary period but be aware that, from day one, employees on probation have the same statutory employment rights as other employees
• Ensuring that where an employee’s failure to satisfactorily complete the probationary period is connected to, for example, pregnancy or any other protected characteristic, that you do not discriminate against them because of this
• Ensuring that you follow a fair disciplinary or dismissal procedure, keeping an accurate record of your decision-making
• Complying with the statutory and contractual notice obligations when terminating an employee’s contract of employment
• Making payment in lieu for any unused holiday entitlement accrued during the period of probation in circumstances where you dismiss the employee
• Confirming in writing where an employee has passed their probationary period and when any enhanced contractual terms take effect

 

When deciding on a probationary period and the terms under which an employee on probation will be required to work, you may impose less favourable contractual terms than those that the employee will benefit from once this period has come to an end.

However, you should always make these terms clear in writing. Moreover, any such terms must not take away from any employee rights during probation that arise as a matter of law. In particular, an employee will be statutorily entitled from day one to certain minimum rights, including the right to the national minimum wage and a statutory minimum notice period.

Further, if you are wanting the flexibility to extend the period of probation to allow you to continue to assess the employee’s performance or conduct, you should again set this out in writing prior to the commencement of this period.

 

Need assistance?

 

While the probationary period provides the opportunity for both the employer and employee to gauge the fit for the role, employers are advised to proceed with caution when dealing with performance and conduct issues during the probation period. While employee rights during probation are limited in comparison to those who have ‘passed’ this phase, there are steps employers should take to ensure they do not fall foul of their obligations or of the employee’s rights, particularly where there may be allegations of discrimination, as this can render a dismissal automatically unfair and give rise to a tribunal claim.

DavidsonMorris’ employment law and HR specialists work with employers to provide ongoing guidance and advice on issues such as conduct, performance management and disciplinary action in relation to new employees.

If you have a question or need advice on any aspect of workforce management, contact us.

 

Probation period law FAQs

 

What is a probation period?

A probation period is an initial phase of employment during which an employee’s suitability for the role is assessed. It usually lasts between one and six months.

 

Is a probation period required by law?

Probation periods are not a legal requirement in the UK. However, they are commonly used by employers to evaluate new employees before confirming permanent employment.

 

Can an employee be dismissed during their probation period?

An employee can be dismissed during their probation period if they fail to meet expectations. Employers must ensure the dismissal is fair and does not breach statutory rights, such as protection against discrimination.

 

Do employees on probation have the same rights as permanent staff?

Employees on probation are entitled to statutory rights, including the national minimum wage, holiday entitlement, and protection from discrimination. Other contractual rights may vary depending on the terms of the probation.

 

Can a probation period be extended?

Probation periods can be extended if allowed under the employment contract. Employers should provide clear reasons for the extension and outline expectations for improvement.

 

Do employees need to give notice during probation?

Employees must give notice if they wish to leave during probation, but the notice period is often shorter than for permanent staff, as specified in the contract.

 

What happens after the probation period ends?

If successful, the employee’s position is typically confirmed, and they transition to permanent employment. If unsuccessful, the contract may be terminated, or the probation period extended.

 

Can employees appeal a dismissal during probation?

While probationary employees cannot usually claim unfair dismissal within their first two years, they can raise a grievance or appeal if the dismissal breaches their statutory rights or contractual terms.

 

What is the employer’s responsibility during probation?

Employers must set clear expectations, provide feedback, and conduct performance reviews. Fair treatment and adherence to employment law are required throughout the probationary period.

 

Glossary

 

Term	Definition
Probation Period	A trial period at the start of employment used to assess an employee’s suitability for the role and organisation.
Employment Contract	A legal agreement between employer and employee outlining the terms and conditions of employment, including probation.
Notice Period	The amount of time an employee or employer must give before ending the employment relationship, often shorter during probation.
Statutory Rights	Basic employment rights guaranteed by UK law, including minimum wage, holiday entitlement, and protection from discrimination.
Extension of Probation	An agreed prolonging of the probation period to allow further time for assessment, typically with clear expectations set.
Dismissal	Termination of an employee’s contract, which can occur during probation if performance or conduct is unsatisfactory.
Performance Review	A formal evaluation of an employee’s work, often conducted during probation to determine suitability for the role.
Fair Treatment	Ensuring that employees are treated equally and without discrimination throughout the probationary period.
Holiday Entitlement	The legal right to paid annual leave, which applies to all employees, including those on probation.
Feedback	Constructive input from employers to help employees improve their performance or address concerns during probation.
Permanent Employment	Employment status granted after successfully completing the probation period, with full contractual rights.
Grievance	A formal complaint raised by an employee if they feel they have been treated unfairly or unlawfully during probation.
Discrimination	Unfair treatment of an employee based on protected characteristics, such as age, race, or gender, prohibited by UK law.
National Minimum Wage	The minimum hourly pay that employers must provide to all employees, including those on probation.
Unfair Dismissal	Termination of employment that is considered unjust, though employees on probation cannot usually claim this until after two years of service.