• Facebook
  • Twitter
  • LinkedIn
Call us now: 01243 836 840   [email protected]
Pure Employment Law
  • Who We Are
    • Nicola Brown
    • Peter Stevens
    • David Jones
    • Debbie Poole
    • Linda Nye
    • Brenda Cherry
  • For Employers
    • Advice on HR and People issues
    • Investigations, Hearings and Appeals
    • Restructuring and Redundancy
    • Defending Employment Tribunal Claims
    • Dismissal of Senior Executives
    • Contracts, Handbooks and Policies
    • Employment Law Training
  • For Employees
    • Settlement Agreements
    • Workplace Issues including Disciplinary and Grievance
    • Bringing an Employment Tribunal Claim
  • Employment Law Events
  • Legal Updates
  • Testimonials
  • Vacancies
  • Contact us
  • Search
  • Menu Menu

Probationary periods

29th May 2014

We could not help but notice the statistic from a recent study that 1 in 5 employees fail to get past their probationary period. This seems like quite a high number! The study found that poor performance and absence were the most common reasons for a failure to pass.

Although it is not a legal requirement to use probationary periods, which are usually around 3 to 6 months, we strongly recommend doing so. Employees on probation do not have enough service to be able to bring a claim for unfair dismissal (which is 103 weeks’ for employees who started on or after 6 April 2012), but they could potentially bring claims for discrimination, whistleblowing and automatic unfair dismissal* in which case the evidence as to what happened during the probationary period may be significant.

The first and most obvious benefit of a probationary period is that it encourages both employer and employee to review and assess whether things are going smoothly. Usually, employers will have one or two review meetings with a new employee during the probationary period which is a good opportunity to ensure they are OK and help settle them in. One small point here, do ensure those review meetings happen and that an employee is told if they have passed their probationary period – often this is forgotten!

The second benefit for an employer is that different contractual terms could be applied during the probationary period, such as allowing for a lesser notice period by either side during the probationary period, or only paying Statutory Sick Pay for any illness absence during the probationary period with a higher rate of company sick pay being payable after successful completion of the probation. Of course, such terms would need to be set out in a contract of employment at the outset of the employment relationship.

As always, there are things that can go wrong. The study mentions that absence can be a common reason for failure. Employers can take a strong view on absence during a probationary period, as they want new employees to seek to impress. However, employers should be careful not to have knee-jerk reactions about sickness absence, especially if it is clear there was a genuine sickness (e.g. a stomach bug) which sometimes, is just life! Caution should also be exercised if absence is linked to a potential disability as the employee may then be able to bring a claim of disability discrimination if they are dismissed during the probationary period. If there is a clear pattern of absence, such as a new employee calling in sick a few times on a Friday, then it can be possible to dismiss during the probationary period.

Poor performance can be more straightforward, but obviously it is best not to spring this on the employee at the end of the probationary period. If there are issues during the probationary period, address these as soon as possible with the employee. If the employee is then dismissed at the end of the probationary period because they have failed to pass, it should not be a surprise to them. If it is a surprise, this can lead to employees questioning whether there is an ulterior motive i.e. potential discrimination.

Usually employers pay the employee for their notice period if they are dismissed during their probationary period. This is why it can be beneficial to apply a lesser notice period during probation. Whilst it may not be necessary to follow a full disciplinary/performance management procedure given that the employee will not have obtained the right to claim unfair dismissal, it is sometimes helpful to explain the reasons why an employee has failed the probationary period to draw away any inference that it is related to a reason which could give rise to claims for discrimination or automatic unfair dismissal. If there is any doubt about a particular situation, we would urge you to seek advice.

* Automatic unfair dismissal is where a dismissal is for reasons connected with pregnancy, childbirth, statutory leave (e.g maternity), for a health and safety reason, a shop or betting worker for refusing to work on a Sunday, for a reason connected with rights under the Working Time Regulations 1998, for performing functions as an occupational pensions trustee, for performing functions as an employee representative or on a European Works Council, for asserting a statutory right, in connection with an application for flexible working, related to the National Minimum Wage, for enforcing rights in relation to working tax credit, in connection with a prohibited list (blacklisting), in connection with time off for study and training request rights, in connection with carrying out jury service, related to status as a part-time worker or fixed-term employee, for trade union membership or non-membership, or participation in trade union activities, in connection with exercising the right to be accompanied to a disciplinary or grievance hearing, for taking part in protected industrial action, in connection with exercising prescribed rights as an agency worker, and in connection with pensions auto-enrolment.

Do you have any issues with new employees on their probationary periods? Do you need help to draft contractual terms around probationary periods? We can help! Please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.
Share this article
  • Share on Facebook
  • Share on Twitter
  • Share on WhatsApp
  • Share on LinkedIn
  • Share on Reddit
  • Share by Mail
https://www.pureemploymentlaw.co.uk/wp-content/uploads/2019/02/Pure-Employment-Law-logo.jpg 0 0 Nicola Brown https://www.pureemploymentlaw.co.uk/wp-content/uploads/2019/02/Pure-Employment-Law-logo.jpg Nicola Brown2014-05-29 10:19:012014-12-03 15:59:15Probationary periods

Join our mailing list

* = required field
Mailing Lists


Recent Legal Updates

  • Can long Covid be a disability? 29th June 2022
  • Employer unfairly counted disability-related absences when dismissing 29th June 2022
  • Did an Employment Tribunal correctly award an uplift for failure to follow the ACAS Code in a sham redundancy case? 29th June 2022
  • Without prejudice negotiations – what is unambiguous impropriety? 29th June 2022
  • Does referring to a man’s baldness at work amount to sexual harassment? 25th May 2022
Link to: Contact Us

Any questions? Why not get in touch!

Our advice is always given in plain English without any waffle, and we focus on providing practical solutions to our clients’ problems.

Contact us

LEGAL INFORMATION

Pure Employment Law | 1 Little London, Chichester, West Sussex, PO19 1PH
[email protected] | Tel: 01243 836840

Pure Employment Law is the trading name of Pure Employment Law Limited, registered in England and Wales with company number 07134294 and whose registered office is 1 Little London, Chichester, West Sussex, PO19 1PH. Pure Employment Law Limited is authorised and regulated by the Solicitors Regulation Authority with registration number 533794. A list of the company’s directors is available for inspection at the registered office

DISCLAIMER

The information contained in this website is for general information purposes only. The information is provided by Pure Employment Law and while we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.

Privacy Policy | Cookies Policy | Terms & Conditions | How to make a complaint | Sitemap

© Pure Employment Law 2022

Scroll to top

This site uses cookies. By continuing to browse the site, you are agreeing to our use of cookies as defined in our cookie policy.

Accept Cookie Policy

Cookie and Privacy Settings



How we use cookies

We may request cookies to be set on your device. We use cookies to let us know when you visit our websites, how you interact with us, to enrich your user experience, and to customize your relationship with our website.

Click on the different category headings to find out more. You can also change some of your preferences. Note that blocking some types of cookies may impact your experience on our websites and the services we are able to offer.

Essential Website Cookies

These cookies are strictly necessary to provide you with services available through our website and to use some of its features.

Because these cookies are strictly necessary to deliver the website, refusing them will have impact how our site functions. You always can block or delete cookies by changing your browser settings and force blocking all cookies on this website. But this will always prompt you to accept/refuse cookies when revisiting our site.

We fully respect if you want to refuse cookies but to avoid asking you again and again kindly allow us to store a cookie for that. You are free to opt out any time or opt in for other cookies to get a better experience. If you refuse cookies we will remove all set cookies in our domain.

We provide you with a list of stored cookies on your computer in our domain so you can check what we stored. Due to security reasons we are not able to show or modify cookies from other domains. You can check these in your browser security settings.

Google Analytics Cookies

These cookies collect information that is used either in aggregate form to help us understand how our website is being used or how effective our marketing campaigns are, or to help us customize our website and application for you in order to enhance your experience.

If you do not want that we track your visit to our site you can disable tracking in your browser here:

Other external services

We also use different external services like Google Webfonts, Google Maps, and external Video providers. Since these providers may collect personal data like your IP address we allow you to block them here. Please be aware that this might heavily reduce the functionality and appearance of our site. Changes will take effect once you reload the page.

Google Webfont Settings:

Google Map Settings:

Google reCaptcha Settings:

Vimeo and Youtube video embeds:

Other cookies

The following cookies are also needed - You can choose if you want to allow them:

Privacy Policy

You can read about our cookies and privacy settings in detail on our Privacy Policy Page.

Privacy Policy
Accept settingsHide notification only