probationary_period_new_employeesThere is a common misconception both among managers and employees that probationary periods are a legal concept. In fact probationary periods have no meaning in law at all. There is no legal requirement to use them, and passing a defined probationary period does not gain the employee any additional legal rights.
Qualification for many statutory employment rights is based purely on length of service, and the length of service used for the accumulation of various legal rights will count from the employee’s original start date, and not from the date that marks the end of the probationary period.

As the qualifying period to bring a claim for unfair dismissal (other than in specific exceptions) is two years, this means that not only will an employee not be able to claim unfair dismissal if they are advised they have not passed their probationary period because of poor performance, but actually the same will apply after their probationary period has been passed (assuming it is shorter than two years).

So although of course if you are going to have a probationary period at all, and make a decision at the end of it, if you find you have made the wrong decision, and need to let the employee go, you should be able to do so without additional legal complications.

All of this means that the legal implications of a probationary period are purely contractual. In many cases employees’ notice periods increase after passing probation, which means of course if you do decide after probation has been passed that you want to dismiss a poor-performing employee, you’ll have to give them more notice than previously. Also, for many employees they become entitled to certain contractual benefits after probation is passed.

Because of these implications, it’s important that what counts as the end of probation and the process that is followed is clear. Although probationary periods are (or should be) for a set period of time, and ideally managers will conduct a review, make a decision and notify the employee just before that period is up, in reality it is all too common for timescales to slip, and for this to actually take place a bit later than the specific three/six month date.

Because this happens, it’s worth double checking the wording in your contract or policy relating to probationary periods to ensure you are not caught out. If there is an increased notice period is this specifically linked to passing probation or simply linked to length of service? How does an employee know they have passed probation – do they need to be specifically told, or is the wording vague enough that it could be interpreted as they have passed it unless told otherwise. To avoid getting caught out, having wording that makes it clear that employees are not considered to have passed probation unless specifically told they have, even if the timescale drifts, might be useful.
If you would like further advice on applying probationary periods, do get in touch.