Probationary period myths busted

You've been offered a new job, but your new employer has made you a conditional job offer that includes a probationary period for the first few months of your employment.

However, probationary periods have no legal basis, so what do they actually mean?

What is a probationary period?

Probationary periods are often for the first three or six months of your new job and are used by your employer to assess your performance and conduct during your early stages of employment, to make sure they're happy with your work.

• Your employment starts from your original start date, not from the date at the end of your probationary period (when you're 'confirmed' in the job)

• This means that your length of service, which is essential in determining your eligibility for statutory employment rights, starts from your original start date and isn't affected by the probationary period

• This includes the right not to be unfairly dismissed

If your employer isn't satisfied with your performance or conduct during your probationary period:

• They may have the option to extend the probationary period if this is written into your contract (but again this doesn't affect your original start date) or

• They can dismiss you.

How can you be dismissed?

If they're unhappy with your performance or conduct, your employer can dismiss you legally if:

• They follow correct disciplinary procedures (your employer may also have a separate probationary period policy which outlines their procedures to end your employment) and

• They give you the correct notice period to dismiss you

• However, your employer doesn't have to wait until the end of your probationary period to dismiss you.

If your employer doesn't follow a disciplinary procedure to dismiss you, and your employer's disciplinary procedure is contractual, they may be in breach of contract.

If you believe that your dismissal is unfair and you have two years service with your employer (from your original start date, not from the end of your probationary period), you can bring a claim for unfair dismissal to an Employment Tribunal (ET).

You can bring a claim for discrimination to an Employment Tribunal at any point in your employment if you deem it appropriate - you don't need to have two years service if you believe you've been discriminated against.

Przybylska v Modus Telecom Limited

An important Employment Appeal Tribunal (EAT) decision in 2007 (Przybylska v Modus Telecom Limited) found that where there’s an express contractual right for the Employer to extend (or not) the probationary period, within the initial probationary period timescale, and the employer doesn’t do this they lose their right to extend the probation. Therefore, the probationary period is completed by ‘default’ and the employee is therefore entitled to the notice periods that apply after the probationary period (which are usually longer than those during the probationary period).

The brief details of the case are: Miss Przybylska was employed on a three-month probationary basis from 3 October 2005. During this probation, her employment could be terminated with a week’s notice and Modus reserved the right to extend the probationary period. Miss Przybylska was on holiday when her probationary period expired on 2nd January 2006, and Modus had not extended her probationary period when her holiday began.  At the end of January 2006, she was dismissed with one weeks’ pay in lieu of notice.

She complained of breach of contract to the Employment Tribunal (she said she should’ve been paid three months notice after completion of her probationary period). The ET said it was reasonable for the probationary period to continue until she had received an indication of whether she had successfully completed it or not.

The EAT disagreed, saying that the assessment should’ve taken place during the probationary period and Modus should’ve foreseen she would’ve been on holiday at its end; they could’ve extended the probationary period if they hadn’t been able to complete her assessment before the holiday. The EAT felt it wasn’t necessary to imply a term which automatically extended the probationary period.

‍If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk - a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.