So far so simple, but probation periods still have their uses:
- Some employment rights exist from day one of employment e.g. the right not to be discriminated against on the grounds of disability, race or sex, so a gung ho attitude to hiring and firing can still land an employer in hot water, especially where an employee has a protected characteristic.
- Formal probationary periods tend to be between 3 and 6 months in duration and are useful because an employer can provide for a much shorter notice period during probation.
- If the probationary clause has been well drafted, an employer should be able to extend the probationary period of the employee in the event that the employer considers it necessary to do so.
- A probationary period helps to manage employee expectations if used properly. If an employee is dismissed and proper review records have been kept, an employer is much more likely to be able to defend any claims the employee may bring as a consequence, because it will be able to justify the termination.
See our model probationary clause below:
The first [NUMBER] months of the employee’s employment under this agreement shall be a probationary period (“Probationary Period”). The employee’s employment may be terminated during the Probationary Period at any time on [one week's] notice or by the employer making a payment in lieu of notice. The employer may, at its discretion, extend the Probationary Period for up to a further [NUMBER] months. During the Probationary Period the Employee's performance and suitability for continued employment will be monitored. At the end of the Probationary Period the employee will be informed in writing if he has successfully completed his Probationary Period.”