Probation checklist

This checklist will help you successfully operate probationary periods to ensure that new recruits are up to the job.  It contains two sections; the first deals with setting up a probationary period, while second covers its operation.

Why are probationary periods useful?

When taking on new employees you might provide for a probationary period in order to enable you to assess their suitability for the employment. This is usually three to six months, although it could be longer or shorter. However, in employment law terms, the labelling of an employee as a “probationer” has very little effect on the employer/employee relationship. Employees who have short service do not have the general right to claim unfair dismissal, although there are a number of exceptions to this rule. An employee can generally make a claim for unfair dismissal if they have been employed for two years or more. Therefore, the reality is that new employees who are placed on probation will not be able to claim unfair dismissal if they are dismissed during or at the end of their probationary period. However, discrimination claims do not require any length of service.

A probationary period may also be useful following a change of job, retraining, or where a new working pattern such as job sharing is requested. In these circumstances, it should be made clear when offering the new post or changed terms that they are subject to successful completion of a probationary period. If a probationary period is unilaterally imposed after an employee has agreed to a contract, it is likely to amount to a breach of contract and potentially a claim of constructive dismissal.

What do you need to consider when setting up a probationary period?

You should consider:

• the duration of the probationary period and whether you wish to reserve the right to extend where there are doubts as to the probationer's performance
• whether any particular contractual or discretionary benefits will not apply during the probationary period; and
• whether any terms are varied (for example, shorter notice). 

You may also wish to operate a shorter disciplinary process during a probationary period to make it easier to dismiss an employee who is not performing well.

Apart from any express statements of non-application or variation of contractual terms, a probationer will have same rights and obligations as other employees and they will start to accrue continuous employment at the beginning of the probationary period.

Note that for employees (and workers) starting employment (or their engagement) on or after 6 April 2020, you must include details of any probationary period, including any conditions and its duration, in the written statement of employment particulars.