Understanding Your Employment Rights During a Probationary Period

A probationary period is a mechanism commonly utilised by employers to assess an employee’s capability for a role. Below, we explore their common questions and what employees can do if they believe their rights have been violated. If you have any queries about probation periods or want our help:

What is a Probationary Period?

A probationary period is a trial that provides employers a timeframe to assess an employee’s performance and suitability for a role. To avoid any disputes, the terms of probation should be set out in one’s employment contract or offer letter.

Typically lasting up to six months, an employer would evaluate whether an employee can effectively fulfil their assigned tasks, adhere to company policies and integrate within its culture. Furthermore, the timescale would allow employees to determine whether a job suits them. If an employer is satisfied once the trial period has ended, a permanent or fixed-term role could be offered.

Employee Rights During their Probation Period

During the probationary period, basic day-one statutory rights aren’t affected. Among other things, this means employees are still entitled to:

  • The national minimum wage
  • Statutory sick pay
  • Protection from discrimination
  • Protection from automatic unfair dismissal
  • Reasonable adjustments

However, enhanced rights are generally only available once an employee’s trial has ceased. This means they will probably miss out on favourable contractual terms like private medical care and extended notice periods until their role is permanent.

Moreover, individuals on probation won’t be protected from ordinary unfair dismissal. This is because, unlike automatic unfair dismissal, employees must have two years of continuous employment to bring such a claim.

Disciplinary Action During Probationary Period

As mentioned, a probation period enables employers to scrutinise an individual’s suitability for a role. During this time, performance or conduct issues may arise, and an employer’s subsequent actions would differ depending on the severity of the problem.

For minor issues, an employer could resolve the matter informally, possibly via a chat or verbal warning. Regular probation review meetings are necessary, as they can help identify and resolve such issues quickly. Yet, should the problem be more serious, the employer may extend the trial period, initiate formal disciplinary proceedings or even consider dismissal.

What If You’re Dismissed?

If a severe issue arises during an employee’s probationary period, they could face dismissal. Since employees retain limited rights during their trial, employers must provide them with their minimum entitled notice period. 

For employees with a month to two years of continuous employment, this would be a minimum of one week’s notice. However, should an individual’s employment contract entitle them to a longer notice period, they must be given it. This is unless an employee’s actions amount to gross misconduct, whereby employment can be terminated without notice or payment in lieu of the same.

In any event, employees must be taken through a fair and lawful process if they’re dismissed. Their employer could be liable for discrimination or automatic unfair dismissal if they aren’t. As such, employers are encouraged to conduct thorough investigations and allow employees to explain themselves. Doing so helps ensure the dismissal is based on genuine grounds and is procedurally fair.

Can a Probationary Period be Extended?

Sometimes, an employer may want to extend an employee’s probation period. This could be for several reasons, including insufficient time to assess an individual’s performance or conduct concerns. Whether or not the period can be extended will depend on the employment contract terms. If a contract sets out a right to extend the timeframe, yes, it can be extended. 

However, if no such clause exists, the employer may seek the employee’s prior agreement to extend the trial. This may be favourable for the employee, as the alternative could be dismissal.

Should the employer fail to obtain the employee’s consent before extending the probationary period, and no clause to do so was already set out, this would amount to a breach of contract. In such circumstances, the employee may be entitled to rights that they would’ve gained had the trial ended as agreed, such as a longer notice period.

Navigating Promotions

When offered a promotion, employees are sometimes placed on a probation period. Again, this is to assess their capability in the role, which occurs regardless of their prior service.

Before an employee accepts a promotion, they must consider the associated risks. Should it be deemed they aren’t suitable for the role, and their previous position has now been filled, demotion or termination could be a possibility.

Having said that, employers have obligations during such periods. For instance, they must adequately support employees and provide them with sufficient training to succeed in their new roles. Furthermore, if an employee is found to be unsuitable for the promotion and their previous role has been filled, their employer should consider alternative positions.

If an employer fails to comply with its legal obligations, its treatment or termination of an employee could be deemed unfair. This is particularly important when dealing with probationary periods for promotions, as the employee may have accumulated the required two years of service to bring an unfair dismissal claim.

What to Do if Your Rights Are Violated

If employees believe their rights have been breached during their probation period, they must act swiftly. This is because, should legal action be necessary, strict employment tribunal time limits apply that must be adhered to.

To begin, it’s advisable to have an informal discussion with one’s employer. Sometimes, an issue can arise accidentally, and a quick chat can resolve the matter without the need for litigation. This can save time and money and reduce the costs of a claim.

That said, an informal chat isn’t always appropriate or may fail to rectify the matter. If this is the case, it may be worth raising a formal grievance. Once raised, the employer would be required to deal with the complaint in a legally compliant way. Many employers have grievance procedures for employees to follow, so it’s worth finding out if they do.

Unfortunately, even after raising a grievance, issues can remain. In such circumstances, it may be the time to consider employment tribunal proceedings. Employees would first need to undertake ACAS early conciliation, but once complete, they could pursue their claim.

If you have any questions about probationary periods or want help navigating the legal process, contact Redmans Solicitors now. As experts in the employment law sector, we offer specialist advice and can help eligible individuals seek justice.

To find out more about the help we provide: