Probationary Periods for Employees: Legislation and Best Practice
A probationary period is a requirement in employment contracts that allows Employers to review new Employees’ suitability throughout the early stages of their employment. It is a trial period during which both parties can assess the working relationship and allows the Employer to determine whether the Employee is a good fit for the role and the organisation. Employers should be aware of the purpose, duration, and rights of Employees and ensure they follow best practice.
Employer’s Rights during the Probationary Period
As an Employer, if you dismiss an Employee while on probation or undergoing training, please note that the Unfair Dismissals Acts 1997–2015 will not apply, once:
- The contract of employment is in writing and
- The period of employment or training lasts one year or less, as specified in the contract.
However, the Unfair Dismissals Acts will apply an employee is dismissed due to:
- Trade union membership or activity
- Pregnancy-related matters
- Entitlements under maternity protection, parental leave, adoptive leave, parent’s leave, paternity leave, force majeure leave, or carer’s leave legislation.
What is the purpose of a Probationary Period?
The probationary period serves several purposes for both Employers and Employees. For Employers, it provides an opportunity to assess an employee’s skills, competencies, and overall performance in real work conditions. It allows Employers to evaluate the Employee’s suitability for the role, their ability to meet the required standards, and their compatibility with company culture. For Employees, the probationary period offers a chance to familiarise themselves with the job, understand expectations, and determine if the role aligns with their career goals. In doing so both Employers and Employees should benefit from a probationary phase.
Duration of the Probationary Period
The European Union (Transparent and Predictable Working Conditions) Regulations 2022 came into force on 16 December 2022 and introduced significant changes to the law on contracts of employment and working conditions for Employees. Specifically, there are now new regulations regarding the length of probationary periods in contracts of employment for Employees.
The new regulations state that probation periods can be no longer than 6 months. In exceptional circumstances, an employee’s probation period can be extended for up to a further 6 months (up to a maximum of 12 months in total). An extended probation period occurs when it is deemed in the Employees interest or when an Employee has been on extended leave, such as sick leave, during their probation
It is relatively commonplace for some Organisations to take a relaxed approach to managing probationary periods, knowing that they can simply extend the time period if they realise after six months that their employee may not be suitable. The change in employment law means Employers can no longer take this relaxed approach without risk.
HR Buddy would therefore highly recommend that Employers reassess their employee’s contracts and their probationary practices in light of this new regulation.
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