A probation period is a trial period of employment. The employee is employed subject to satisfactory completion of this trial period.
Why have a probationary period?
Employers will often carry out an application and interview process. However you can’t always tell from an interview how an employee will do in a job in practice, or whether they will fit in with an existing team. Employers therefore have a “trial period”.
A probation period will commonly be 3 to 6 months, though they can be as little as 1 week in short-term contracts. The duration of any probation period must not be unreasonable. Performance reviews are common during this period, as they give both the employee and employer an opportunity to discuss any concerns and address these (for example with additional targeted training). Regular formal reviews are not however compulsory.
“I was employed on a maternity contract for a maximum period of 12 months, the lady whose post I was covering decided not to return to work and I was confirmed in the post on a permanent basis 1 month prior to the expected end of my maternity cover contract.
I have received my new contract and have been asked to enter into another probationary period. I am unsure if I should agree to this as I have already successfully completed a probationary period as set out in the terms of my previous fixed term contract.”
If you do not think that a probationary period is necessary, speak to your employer. It may be that you have simply been given a standard contract. A probationary period gives you less security, but if you already perform the role well, you should pass with flying colours!
Rights during probation
Your statutory rights during employment start on the first day of employment, regardless of any probation period. However your contract may give you less favourable terms during a probationary period than after the period has finished. For example:
- A shorter notice period (for both you and your employer)
- No entitlement to free private medical care
- No entitlement to death in service benefit
Any less favourable terms must not infringe your general statutory employment rights which include:
- Right to be paid minimum wage
- Right to holiday pay
- Right to itemised pay statement
- Applicability of the working time directive
“If an employer gives you a 6 month probation and then after 9 months you have still not had your 6 month probation review does that mean you have passed it or not?”
If you are not told during your probation period that it is to be extended or that you have failed your probation, you are deemed to have passed.
“I’m 3 months into my probationary period and am not happy. I’ve not yet had a contract of employment but in the staff handbook it says I have to give 2 months’ notice. I have resigned and they tell me they are holding me to that. Could they sue me if I only give one month’s notice?”
You must also abide by the relevant contractual terms, even during your probation period. If you do not, your employer could claim damages if they lose work or have to pay other employees a higher rate of overtime to cover work during a period that you should have been working. Any such claims are rare however.
Extending your probation period
If your employer has stated that they want to extend your probation period, check your employment contract. This should state under what circumstances your probationary period can be extended, and for how long. Your employer can only extend your probation period if your employment contract says that they can extend it in the particular cited circumstances (e.g to have more time to assess your performance).
“I’m 7 weeks into my 13 week trial period at work and am going out on sick leave. Can my new employer let me go after my 13 weeks if I’m still out on sick leave?”
This is a scenario in which an extension of your probation period is likely, as your employer has not yet had chance to fully assess your performance in the role.
Your employer cannot extend your probationary period for “protected reasons”. These include:
- Your ethnicity, religion or cultural background
- Your gender, age or marital status
If your contract does not allow your employer to extend your probation period, they may wish to change the contract. You do not have to agree to change your contract. If you think that the proposed changes are unfair or less favourable to you, speak to your local Citizens Advice Bureau for free advice about your options. (Find your nearest Citizens Advice Bureau office, including those that give advice by email, at www.citizensadvice.org.uk/index/getadvice).
Dismissed during probation
Just because you were in your probation period does not automatically make your dismissal fair. The usual test still applies: Did your employer act reasonably in all the circumstances?
Your employer has a duty to take reasonable steps to assist employees such as giving them adequate training to enable them to carry out their job. If you are dismissed on the basis of your performance, you would normally expect a reasonable employer to have discussed your performance with you on a prior occasion and given you the opportunity to try and do better.
You cannot claim for unfair dismissal during your probationary period as you will not have worked the relevant qualifying employment period. However you can still claim for:
- Dismissal due to “whistle-blowing”
- Dismissal due to a “protected reason”/discrimination
“I’ve started a new job on 3 months probation period, which is almost over (1 week) and have found out I’m pregnant. I have told my boss the date I’d like to work up until before maternity leave. He said he’s not going to extend it and wouldn’t give me a reason why and said that he doesn’t have to. Is this the correct way to treat an employee?”
Potentially, you could take your former employer to an Employment Tribunal and claim damages. However you will need to have evidence relating to why you were dismissed. (e.g The fact that you are of an ethnic minority and did not get on with your former employer will not be enough. If you can evidence that your former employer said something racially discriminatory, or that all other employees of a different ethnicity with the same review scores are being kept on, that would be more relevant evidence.)If you think that you have been unfairly dismissed during your probation period, speak to your local Citizens Advice Bureau about what you can do.
Last Updated on 25 May 2021