Question: If an employee is on a probationary period do they have any statutory employment rights? Answer: Yes
It’s important to know that a probationary period has no special statutory status as it is an employee’s length of service that determines his or her statutory rights and the fact that they are on probation has no bearing. However, employees with under two years’ service cannot bring a claim for ‘ordinary’ unfair dismissal against the employer i.e. they cannot claim that their dismissal was procedurally unfair or unreasonable. Caution must be taken when making a decision to terminate a probationer, as they can make a claim for discrimination which carries an uncapped award if the claim is successful at tribunal.
In order to avoid discrimination claims relating to your probationary period you should ensure you have in place:
- a probation policy which clearly outlines the terms of the probationary period and the process to be followed;
- a probationary period clause clearly defined within the contract of employment;
- signed confirmation as part of the induction that new recruits have been issued with a copy of the probation policy;
- completed assessment forms for all staff at each appropriate stage with fair and reasonable targets/expectations;
- completed documentation to identify any reasonable adjustments
The policy should be applied to all new recruits with a probationary clause to avoid claims of discrimination as probationers are protected against unlawful discrimination, detrimental treatment and, dependent upon their length of service, automatically unfair dismissal. An employer dealing with a disciplinary or performance issue during a probationary period, particularly one that could result in dismissal, must be able to demonstrate that the grounds for their actions were genuine in order to defend a claim.
Employers are in a much stronger position if an investigation into performance or disciplinary concerns has taken place, giving the employee an opportunity to explain his or her version of events and thus allowing corrective action where appropriate.
If you reach the end of the probationary period and the employee’s performance hasn’t been successful, you have allowed investigation into concerns and provided feedback, then termination is likely. Statutory notice applies as a minimum, although the employment contract may specify a longer period of notice, with which the employer must comply.
If the employee has any remaining holiday accrued through the probationary period the employer should make a payment in lieu of untaken holiday, on termination.
If you are looking to manage or end a probationary period or you are looking to end a contract of employment, please make sure you get advice first. Speak to your HR Advisor or one of the FusionHR team on 01924 827869.