Every company's employment process carries some level of risk. As an employer, it requires you to invest resources into individuals you haven’t previously worked with. So, it’s only natural that you’d want to ensure that such persons are suitable for the job before employing them long-term. A common way employers achieve this is by including a probation clause in their employment contract.
Probation periods in the UK serve as a win-win situation that benefits employers and employees. They allow employers to decide if a person is a good fit for the job while also allowing employees to become familiar with a company’s work environment and determine if it meets their expectations.
Although no specific UK law governs probation periods, this process is regulated by various employment policies and contractual agreements between the employer and employee. Understanding these laws is a great step for employers looking to manage their workforce free from violations and employees looking to make the most of the early stages of their employment.
Therefore, this article will take you through:
The definition of a probation period and its purpose.
The legal requirements and employees’ rights during probation.
How to manage and extend a probation period if needed.
The legal grounds for terminating an employment contract during a probation period and how to handle disputes surrounding it.
The most frequently asked questions regarding probation periods in the UK.
What is a Probation Period?
A probation period is a trial period at the start of employment during which an employee's performance and suitability for the role are closely evaluated. If the employee performs well during the probation, they’ll eventually be employed long-term. Employers also use probation periods for current employees who have been newly promoted or need to be monitored because of poor performance at work.
Typically, probation periods in the UK last for a minimum of three months and a maximum of six months. However, it can vary depending on the employer's specific needs and industry practices. In the end, the decision is up to you as an employer.
The primary purpose of a probation period is to assess whether the employee is a good fit for the company and the role they have been hired to fill. During this time, the employer evaluates several factors, including:
Job Performance: Ensuring the employee can meet the required standards and expectations of the role.
Cultural Fit: Determining how well the employee integrates with the team and aligns with the company’s values and work culture.
Skill Verification: Confirming that the employee possesses the necessary skills and competencies outlined during the hiring process.
Adaptability: Observing how the employee adapts to the company's workflows, processes, and any challenges that arise.
The common perception of a probation period is that it primarily benefits the employer by allowing them to assess a new hire’s job performance before making a permanent commitment. While this is true to some extent, probation periods are also valuable for employees. Since every company’s work culture is unique, a probation period allows employees to evaluate whether the company’s environment aligns with their personal and professional needs. It also provides a clear understanding of the job’s demands, helping them decide if the role meets their expectations and career goals.
Legal Requirements and Employee Rights During Probation
Currently, there are no specific UK laws governing probation periods. Therefore, if you want to implement a probationary period, including a detailed probation clause in your employment contract is essential. This clause should clearly outline:
The Duration: Specify how long the probation period will last.
Extension Rights: State your right to extend the probation period and under what circumstances this extension can be applied.
Notice Periods: Include any specific terms related to notice periods during the probation period.
Having these details explicitly stated in the contract ensures that both the employer and the employee have a mutual understanding of the job expectations. Additionally, if you've been using the same probation clause for an extended period, it may be worth revisiting and updating it to better align with your company’s current needs and legal practices.
Furthermore, employees on probation are entitled to the same statutory rights as long-term employees, including:
The right to receive the National Minimum Wage
Entitlement to work hours that are in line with the Working Time Directive.
Statutory sick pay
Family-related leave
Statutory notice
The right to reasonable adjustments if the employee has a disability
Protection from unlawful discrimination
Maternity or paternity leave
Protection from unfair dismissal
However, there are some exceptions to the general rules. As an employer, you can decide whether to offer additional benefits such as pensions, private health care, bonuses, and life assurance during the probation period.
In terms of notice periods, there are no set rules on how long they should be during probation. However, UK law mandates a legal minimum of one week’s notice for employees who have worked for you for at least one month. This statutory requirement applies only if the employment contract does not specify a notice period. If the contract stipulates a longer notice period, you must legally adhere to it. Additionally, there are circumstances where you can dismiss an employee without any notice, such as cases of gross misconduct.
Managing the Probation Period
Managing the probation period effectively sets the tone for the future working relationship and helps ensure that the new hire fits the role and the company. Here are key elements to consider when managing the probation period:
Set Clear Expectations
It’s important to set targets or expectations you’d wish for your employees to meet during this period. This includes detailing the tasks and responsibilities the employee will be expected to handle and the performance metrics by which they will be evaluated. Key performance indicators (KPIs) and feedback from co-workers can also be used to monitor their progress. The key is to ensure that these targets are not too difficult so you don’t discourage your employees.
Overall, ensure you discuss these expectations in terms they can understand. Discussing this with your employee right at the beginning of the probation period will prevent misunderstandings and ensure that the employee knows what is required to successfully complete their probation.
Conduct Regular Reviews
Regular performance reviews during the probation period provide an opportunity to assess the employee's progress and give constructive feedback. Regular check-ins help identify areas where the employee excels or may need improvement. They also offer a chance for the employee to ask questions and express any concerns,
Provide Support and Training
Providing adequate support and training is crucial for helping new employees succeed during their probation period. This might include mentoring, on-the-job training, or access to resources that help them develop the skills needed for their role. This will also help demonstrate the company’s commitment to their professional development.
Extending the Probation Period
UK laws allow for an extension of a probation period. There are many other reasons why employers might choose to extend a probation period, including:
The need for further assessment.
To give the employee a second chance to meet their performance targets or goals.
To address and improve any issues related to the employee’s attendance or punctuality.
To provide more training or support to help the employee reach the required standards for the position.
To ensure the extension of a probation period is lawful, it must be clearly communicated in writing. The employee should be informed of the reasons for the extension, the length of the extended period, and what is expected of them during this time. The employer must also check the employment contract to ensure that extending the probation period is allowed under its terms.
Best Practices
Setting Clear Targets: During the extension period, it’s important to set clear, measurable targets for the employee. This could include specific performance metrics, attendance goals, or completing additional training.
Regular Feedback: Regular feedback should be provided throughout the extended probation period. This allows the employee to understand their progress and make adjustments as needed. Regular check-ins can also help identify any additional support the employee might need.
Documentation: Keep detailed records of all communications, assessments, and feedback provided during the probation period. This documentation will be important if further action is needed, such as ending the employment relationship.
Termination During the Probation Period
You can dismiss your employees at any time during the probation period. However, the usual practice is to wait till the end of the probation period to give the employee more time to improve. When dismissing an employee during the probation period, you must have a good reason for doing so. Here are some lawful grounds for termination during probation:
Inability to Meet Performance Expectations: Despite additional support or an extended probation period, the employee fails to meet the required performance standards.
Gross Negligence: The employee's actions demonstrate a serious lack of care that could cause significant harm to the company or its stakeholders.
Redundancy: The role the employee was hired for is no longer necessary, making the position redundant.
Legal Compliance: Continuing to employ the individual would result in a breach of UK law, such as a lack of the right to work in the country.
Poor Conduct: Behavior issues like consistent lateness, inappropriate conduct, or alcohol consumption on the job.
Extended Absences: Prolonged absences due to sickness, especially if these absences affect the employee's ability to perform their role.
Avoiding Legal Pitfalls
To avoid legal issues, employers must ensure that the termination process is conducted fairly and without discrimination. Terminating an employee based on factors like age, gender, race, disability, or religion can lead to legal challenges, even during probation. Employers should document the reasons for termination thoroughly and ensure these reasons are based on objective business needs, not on any protected characteristics.
It’s important to treat all employees consistently during their probation periods. If one employee is terminated for a specific reason, other employees in similar situations should be treated similarly to avoid unfair treatment or discrimination claims.
Handling Disputes
If an employee disputes their termination during the probation period, the situation must be managed professionally and in line with company policy. Employers should be prepared to present clear documentation supporting the decision, such as performance reviews, feedback, and any warnings that were given.
If a dispute arises, the employee may file a grievance. Employers should have a clear procedure in place for addressing grievances, allowing the employee to express their concerns and ensuring that the termination decision is reviewed objectively.
Lastly, if the termination is legally contested, seeking legal advice can help ensure that the company’s actions are defensible and that the termination process has adhered to employment law.
FAQs
Can a probation period be extended indefinitely?
No, a probation period cannot be extended indefinitely. While probation period extensions are common, they are usually for a set period. The length of the extension is usually specified in the employment contract or the probation extension letter.
What happens if I am sick during my probation period?
If you fall ill during your probation period, you are entitled to statutory sick pay (SSP) from day one, just like any other employee. However, your employer may extend your probation period to account for the time missed due to illness, especially if your performance couldn't be fully assessed during your absence.
Do I have the right to claim unfair dismissal during probation?
Typically, you cannot claim unfair dismissal during the probation period unless you have been employed for at least two years. However, there are exceptions. You can claim automatic unfair dismissal under certain circumstances, such as discrimination or whistleblowing.
What rights do I have if I am pregnant during probation?
If you are pregnant during your probation period, you are protected under UK law against discrimination. Your employer cannot dismiss you due to your pregnancy. If they do, you may have grounds to claim discrimination. Additionally, you are entitled to maternity leave and pay as soon as you qualify for them, regardless of whether you are on probation.
How should I prepare for my probation review meeting?
Review the set targets for your probation period.
Note down your accomplishments and progress since the last review meeting.
Note any challenges you’ve faced and be prepared to give honest feedback.
Be sure to communicate these concerns with your supervisor at the meeting.
Conclusion
Probation clauses in employment contracts have become a norm in the UK, allowing both the employer and employee to become familiar with their new work relationship through a probationary period. Although there’s no specific UK law on probation periods, these clauses are regulated by various employment policies and contractual agreements. These policies stipulate the legal requirements, employees’ rights during probation, the length of notice periods applicable, requirements for a probation period extension, and how to lawfully terminate an employment contract during probation.
Dealing with the complexities of employment law can be tricky. Whether you're an employer managing probation periods or an employee protecting your rights, expert legal guidance is essential. At Lawhive, we offer expert legal services to help you understand your rights and obligations, ensuring that you handle probation periods effectively and in compliance with the law. Contact us today to get the guidance you need from our licensed solicitors.