Employers often require new employees to complete a probationary period before they will confirm them in post. However, just because an employee is “on probation” does not mean that he or she has no statutory employment rights.
We set out six key action points to help employers comply with the rights of employees who are in their probationary period.
1. Probationary periods at work have no special statutory status
Probationary periods at work
Probationary periods have no special legal status and employees who are on probation enjoy the same statutory employment rights as other staff.
An employee’s length of service determines his or her statutory rights and the fact that they are on probation has no bearing on this.
For example, probationers are protected against unlawful discrimination, detrimental treatment and automatically unfair dismissal in the usual way.
They are also entitled to the national minimum wage, statutory sick pay, rights under the working time rules and time off work in certain circumstances.
2. Carry out an investigation in the event of misconduct or poor performance
Employees who are on probation usually have only short length of service and are therefore unable to claim “ordinary” unfair dismissal, for which two years’ service is needed. As such, they cannot claim that their dismissal was procedurally unfair or unreasonable.
However, employees do not need a minimum period of service to claim that their dismissal was for an automatically unfair reason (such as for asserting a statutory right) or that it was based on unlawful discrimination.
Therefore, an employer dealing with a disciplinary or performance issue during a probationary period, particularly one that could result in dismissal, will want to be able to demonstrate that the grounds for its actions were genuine.
It will be in a much better position to do this if it has carried out a proper investigation and given the employee an opportunity to explain his or her version of events.
3. Grant family-related leave and rights in the usual way
The right to time off for antenatal and adoption appointments applies to probationers in the same way as to other staff. They are also entitled to family-related leave and pay if they would otherwise qualify.
This means, for example, that a probationer who is pregnant is entitled to take maternity leave and may qualify for statutory maternity pay. She cannot be required to wait for her probationary period to end before starting her maternity leave.
4. Make reasonable adjustments for disabled probationers if necessary
Staff on probation are protected against unlawful discrimination, including disability discrimination.
If an employee who is on probation has a disability, and/or his or her sickness absence is due to a disability, the employer will need to make reasonable adjustments.
5. Investigate grievances from workers on probation
If an employee on probation raises a grievance, the employer should investigate further. The grievance may relate to discriminatory behaviour (eg bullying or harassment) or unlawful detrimental treatment, which the employer will need to address.
Aside from the obvious equal opportunities and good practice considerations, failure to address discriminatory behaviour could result in a costly discrimination claim being made against the employer.
6. Comply with statutory notice and holiday rights on termination
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If the employee does not pass his or her probation, the employer may be left with no option but to terminate the contract. Statutory notice applies as a minimum, although the employment contract may stipulate a longer period of notice, with which the employer must comply.
If the employee has taken less statutory holiday than he or she has accrued during the probationary period, the employer should make a payment in lieu of untaken holiday, on termination.
