The fact that an employee is on probation has no bearing on his or her statutory employment rights. The employee’s length of service is more relevant. An employee on probation is usually short-serving and it is this that impacts on his or her rights, not the fact that he or she is on probation. Like any other employee, a probationer will be protected against discrimination on unlawful grounds (for example race, sex and age), and dismissal for most automatically unfair reasons (pregnancy, trade union membership, making a protected disclosure, to name a few). Other employment rights will also apply, subject to any length of service or other qualifying requirements. Being on probation will not disentitle an employee to family-related rights or the right to a written statement of terms and conditions.

However, the term does have some practical use for employers. It is perceived as a period during which new employees are assessed closely to establish their suitability for the post. The end of the period acts as a prompt to make an assessment, rather than just allowing things to drift on (although any serious issues should be brought to the employee’s attention before the probationary period comes to an end). The employee is aware that he or she is being monitored and that there will be a review at the end of the period, so this does not come as a surprise. Employees can also use this period to decide if they are happy in the job.

Employers can specify different contractual terms for those on probation, for example the notice clause is often shorter during the probationary period (although statutory notice rights must not be breached). Whether or not the employee has successfully passed his or her probation should be made clear once the period is completed. This is to avoid any confusion about contractual rights and to give the employee recognition of his or her success. Employers wishing to terminate employment where the probationary period has not been successfully completed should ensure that none of the statutory rights will be breached.

Related entries: Employment law fact No.2 - did you know that … while the statutory minimum notice to be provided by an employer rises in relation to an employee’s service, the statutory minimum notice to be provided by the employee remains the same?

Employment law fact No.1 - did you know that … an employee whose contract is terminated while on long-term sick leave and who has exhausted all entitlement to sick pay will be entitled to be paid full pay for the statutory minimum notice period, unless his or her contractual notice exceeds the statutory minimum notice by at least one week?