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Do new starters need to have a probationary period contained in their employment contract?


Probationary periods are generally viewed by employers as an important and mutually beneficial part of an employment contract. This period of time at the start of employment enables the employer to determine whether the employee is suitable for the role, whilst ensuring new employees are granted the training, support and guidance they need to perform to the required standard.

Employers are not legally obliged to offer a probationary period for new joiners, however, many choose to do so. Investing time in educating the employee during the probationary period will help to reduce bad habits and avoid performance related issues in the future. Many employers may choose to provide a workplace buddy for new employees as part of the probationary period to provide additional support and help them integrate into the working environment.

Employees are entitled to some statutory employment rights from their first day, regardless of the fact they are on probation. These rights include National Minimum Wage, as well as working time entitlements such as holiday accrual and rest breaks. During the probationary period employees may receive limited company entitlements and reduced wages, providing these do not breach the individual’s statutory rights. Many employers also include a contractual clause allowing them to amend their normal disciplinary and dismissal procedures for employees during their probation so a dismissal can be managed quicker.

As probationary periods are a contractual term it is up to each employer to decide how long they will last. A period of between 3-6 months is usually judged to be a fair amount of time for employers to decide whether an individual is suitable for the role. When deciding on the length of the probation employers should consider the complexity of the role and the experience of the employee. If it is determined a substantial amount of training and development is needed to carry out the role effectively then the longer 6 month probationary period is advised.

When someone reaches the end of their probation a decision should be made on whether they have passed or not. Those that pass should receive documentation confirming this point, in addition to any improved contractual terms. It is also possible to extend the probationary period for those who have not yet reached the desired level of performance, but who it is believed will do so given further time.

Employees who have not reached the necessary level of performance, or shown the potential to do so, may be dismissed at the end of their probation period. In the case of a dismissal, it is vital to carry out a fair and correct procedure. It is important that employees abide by their contractual procedures to prevent a breach of contract claim, and also to ensure that there is no discriminatory or automatically unfair element to the dismissal – these are claims employees can make from day one of employment.

Alan Price is a senior director and employment expert at Peninsula UK