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Employment probationary periods provide employers with some flexibility when hiring new workers. You can dismiss an employee on a probationary period more easily during that period of time, although you must still follow a fair process when doing so. Employees on probationary periods still have the same rights as other employees.

This article will explain how probationary periods work and clear up some common misconceptions, such as the difference between trial periods and probationary periods. 

How Do Probationary Periods Work?

You can include a probationary period clause when employing a new worker. For a probationary period to be valid, you must record it in writing in your employment agreement, including how long the probationary period will last. If you and the employee agreed to it verbally but did not put it in the employment agreement, then the probationary period is invalid. 

A valid probationary period allows employers to accelerate the process for dismissing a new employee during that period, particularly in terms of poor performance. While you must follow a fair process when doing so, you do not need to go through as much of a  time-consuming process as you might for an employee who is not on a probationary period. 

For employees on a probationary period, you should be clear in telling them if there: 

  • are any issues with their work; and 
  • is a chance that their employment might not be continued after the probationary period ends. 

You should also:

  • provide them support; 
  • provide appropriate training; and 
  • give the employee the chance to improve if their performance is not up to standard.

How to Dismiss an Employee at the End of a Probationary Period

You cannot just tell an employee to leave their job at the end of their probation period if you do not think they have performed well. You can only dismiss an employee on a probationary period after assessing them fairly. If their work was not good enough, you should tell the employee why and that you intend to end your employment relationship.

You need to give the employee an opportunity to respond to these points. If, after considering any response, you still decide to end the employee’s employment, you must give the employee the notice in their employment agreement. This process is the same as dismissing an employee on a trial period. 

Note that employees dismissed on a probationary period are still able to raise a personal grievance on the grounds of unjustified dismissal, for example, if they:

  • believe you did not have a good reason to dismiss them;
  • were not given appropriate advice and training on how to do the job effectively; or
  • believe you or other senior staff did not fairly assess them.

How Are Probationary Periods Different to Trial Periods?

There are some key differences between probationary periods and trial periods, though the two are often confused.

In terms of how they operate, the key difference is that employees dismissed on a trial period cannot raise a claim for unjustified dismissal. In contrast, employees dismissed on a probationary period can do so. This means that an employer must follow a fair process when dismissing an employee on a probationary period. On the other hand, when dismissing an employee on a trial period, there is less procedurally required. 

While you must still give the minimum notice when dismissing employees on trial periods, you do not need to show that their performance was poor. 

However, there are fewer restrictions on when employers can use probationary periods, compared to trial periods. Employers of any size can use probationary periods, whereas only employers with fewer than 20 employees can use trial periods. Probationary periods can also be for any amount of time, whereas trial periods can only be a maximum of 90 days. 

When to Use a Probationary Period

Probationary periods can be useful in a range of different business contexts. These include:

  • if you would like to offer an existing employee a new senior role, but you are not sure they have the skills to succeed in that role. You can employ them on a probationary period while ascertaining whether they are up to the new role; or 
  • if you would otherwise use a trial period but are unable to do so. For instance, because your business employs more than 20 people and is too large to use trial periods. 

Key Takeaways

Probationary periods offer employers additional flexibility when hiring new employees. It is easier to dismiss employees on probationary periods if their performance is not up to standard. However, you must still go through a fair process and support the employee like all other employees. Probationary periods are different from trial periods, particularly how employees on probationary periods are still able to raise personal grievances for unjustified dismissal.

If you have any other questions using probationary periods, contact LegalVision’s employment lawyers on 0800 005 570 or complete the form on this page.

FAQs

How are probationary periods different from trial periods?

While employees dismissed on a trial period cannot raise a claim for unjustified dismissal, whereas employees dismissed on a probationary period can do so. Trial periods are only available to small employers of fewer than 20 employees.

Can an employee dismissed on a probationary period raise a personal grievance for unjustified dismissal?

Yes, they can. They have to prove that the employer did not follow a fair process or some other significant error.

Can any employer use a probationary period or only smaller employers?

Any employer can use probationary periods. This is different to trial periods which are only available to be used if there are less than 20 employees.

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