Busting the top 3 probationary period myths
What is a probationary period?
A probationary period is essentially a trial period at the start of any employment, which typically lasts between one and six months. It is a good opportunity for employers to assess the suitability and performance of an individual for the role as the individual is employed subject to satisfactorily completing their probationary period.
However, there are several common misconceptions of the use of probationary periods, with the main one being probationary periods offer employers a ‘get out of jail free card’ to dismiss their employees for any given reason – which isn’t the case. It is therefore important that employers are not caught out by the various myths.
Can I dismiss someone for any reason during their probationary period?
Probationary periods have no real meaning in employment law, so the normal principles still apply. Employees generally need to have two years’ service to bring a claim for unfair dismissal. However, they do not need to have two years’ service to bring a claim for discrimination or a claim that their dismissal was automatically unfair. There are certain situations where a reason to dismiss may render any dismissal as automatically unfair, including: due to pregnancy, raising a health and safety concern, or asserting one of their statutory rights (i.e., the right to national minimum wage).
Providing there is no discrimination involved and the reason for the dismissal does not give rise to an automatic unfair dismissal, you are free to dismiss an employee during their probationary period.
If you are considering dismissing an employee during their probationary period, please get in touch with the Howarths advisory team. We are here to help and advise you on the risks and most appropriate process to follow.
Does my employee accrue service for the purposes of statutory rights throughout their probationary period?
Yes, the existence of a probationary period does not affect the employee’s length of service. Their service will begin on their first day of employment and they will accrue full employment law protection when they have worked for you for at least two years.
Do I have to give notice to dismiss someone during their probationary period?
This depends on what notice they are entitled to in their contract of employment and how long they have worked for you.
The law sets out a statutory minimum amount of notice that an employer must give an employee to terminate their employment. If an employee has worked for you for less than one month, by law, you do not have to give them notice. However, where they have worked for you for more than one month but less than two years, they will be entitled to at least one weeks’ notice.
However, sometimes a contract of employment may state that the employee is entitled to more notice than what is required by law, so you should check their contract of employment before considering a dismissal.
If the contract of employment provides for less notice than the statutory minimum, then the law will prevail and you will be required to give more notice.
Author: Anna Schiavetta, Employment Law Solicitor at Howarths
