Points of probation - part 1

A probationary period can be a very useful way for employers to monitor and evaluate new staff members. However, it’s not something that exists in any statute or legal provision, which means it isn’t automatically applied upon a new employee joining an organisation, despite it being commonly believed that this is the case.

Essentially, probation periods are a contractual provision that can only exist and be applied in line with the rules an employer sets out in the contract. If there’s nothing stated in the contract, there’s no probation period.

First of all, ensure that all key information, including any benefits to the organisation, are set out clearly in writing:

• How long will the probation period last?

• What procedures will apply during this period?

• What notice period will you expect to give (and receive)?

There’s no right or wrong answer here – it depends on how long it will take for new employees to receive full training and learn any systems, while their performance and behaviour are monitored. However, probation periods tend to be between three and six months, though they can extend beyond this. Bear in mind that employees have protection from unfair dismissal once they reach two years’ service, so procedure would need to be followed regardless of any contractual provision.

If the contract is to be a fixed-term one, it’s worth considering if probation is worth including – for example, if the fixed-term contract is for three months. The other part to this is that if there is a fixed period, both parties would be expected to be tied to the contract for that period.

Should you decide early in the probationary period that this isn’t a sustainable employment for any reason, you’d still be bound by the contract for that specific length of time. To try to prevent this and give yourself a little more flexibility, it’s advisable to consider including a ‘break clause’, which outlines that not only can the employment be terminated during the probation period, but the contract can be ‘broken’ before the end of the probationary period prescribed.

Another consideration when looking at the length of the probation is what happens if the employee has been doing satisfactorily in the role, but there’s some doubt about the long-term suitability. As a contractual provision, a probation period will end automatically immediately after the period outlined unless any further action is taken. Either the employee will have been considered to have successfully passed the probation period the day after the date the probation period was due to end, or the employee would need to be terminated. There is a third option, however. Probation periods can be extended, but only where there is the contractual provision to allow for it.

Probation periods tend to be between three and six months, though they can extend beyond this.

Whatever length of probation period you choose to have, it’s a good idea to include a line outlining that this period can be extended, which would be confirmed in writing at the time. Providing that this is then carried out before the probation period expires, any terms that apply in the probation will continue.

To be continued in April…

All Alliance members can contact the team at Law-Call for legal advice. You can find their contact details in the members’ area of our website at portal.eyalliance.org.uk.