HR Expert: Probationary Period
My client wants to know more about the rights an employee has during their probationary period, is it true that they can withhold certain contractual entitlements until employees’ pass their probation?  

Probationary periods are a common aspect of most modern employment relationships. These periods, which are not governed by the law, usually last between 1-6 months, giving your client an opportunity to assess whether new staff are well suited to their role and performing at a satisfactory level.

There can be many misconceptions about an employee’s rights during their probationary period and it is common for employers to apply different terms and conditions to staff during this time. Your client should make these conditions clear in any offer letter and contract, clarifying that employment is subject to a satisfactory completion of a probationary period.

Whilst individuals will still qualify for several day one rights, including the right to be paid the national minimum wage (NMW) and receive appropriate rest breaks under the Working Time Regulations 1998, your client may amend certain contractual provisions during probation.

For example, contractual notice periods are often shortened during probation, making it less burdensome to dismiss unsuitable candidates. However, your client must still ensure they observe any statutory minimum notice requirements that an employee may have. In a similar vein, your client may wish to pay employees a reduced salary or withhold contractual sick pay during this time, providing this is adjusted once they have passed their probation.

It is also possible for your client to adopt a more flexible approach to managing disciplinary matters and dismissal during a probationary period, providing this is referenced in employment contracts. Whilst staff will always retain the right not to be dismissed for unlawful reasons, your client may choose to adjust their normal disciplinary procedure where issues arise during a probationary period. This will speed up the disciplinary process and give your client more flexibility in dismissing individuals for instances of misconduct or poor performance.

Regular probationary review meetings are a key part of any probation and your client is reminded to meet regularly with employees to review their progress and identify any areas for improvement. When a probationary period comes to an end your client may choose to pass the employee, dismiss them or extend their probation further. It is important that your client clarifies their decision to the employee one way or another, as individuals may be able to argue that their employment has been confirmed in the absence of any notification.

Ultimately, your client has the ability to withhold certain contractual rights to staff during a probationary period providing they continue to comply with statutory requirements. Whilst there is no specific rule on the length of probationary periods, your client should not attempt to keep individuals on probation for an unnecessary length of time as a way of withholding certain contractual rights.


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