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On Probation

Many employment contracts contain a probation period but what does that actually mean?

From the perspective of an employment lawyer the answer under the law of England and Wales is in many cases not a lot.

There is no statutory effect whatsoever; a probation period is a purely contractual matter. It has whatever effect the parties agree it has but does not affect the statutory position between the parties.

For example, whether an employee is in or out of their probation period has no effect on whether they can claim unfair dismissal. An employee will either be entitled to claim unfair dismissal by law or not  =whether they are in or out of their probation period is irrelevant.

A probation period can be useful to remind employers to review whether an employee is working out but managers should be doing that on an on-going basis anyway. Having a probation period often means that the end of the probation period simply slips by or that performance is only reviewed at the probation period and not kept under review afterwards.

Probation periods can be a useful way to avoid giving expensive staff benefits to employees who only stay a short time. For example an employer might offer health insurance or access to other benefits to employees who have passed their probation period but not before.

It is also common to provide that contractual notice periods are shorter during the probation period. The employer is still obliged to give statutory minimum notice.

All in all employees should not be fooled into thinking that passing the probation period gives them any real security.

Employers should think carefully about whether they actually need a probation period and if so how long it should be. If they do have one, they should make sure they use it as an opportunity to review whether the employee is right for the organisation and make sure not to fall into the trap of letting things slip afterwards.

If you need advice on probation periods or any employment issue, please contact us on 01227 813400 or fill in the contact form on our website.

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