Probationary periods: are they needed or not?

One employment lawyer’s argument against them

Why have Probationary periods?

Upon my recent review of the case of Przybylska v Modus Telecom, I was reminded of how managing the employee’s probation incorrectly could create a rather frustrating and expensive problem for employers. In this case, the probationary period was three months and:

• the employee’s review was held outside the three-month period;
• the employer said she had failed her probation period and gave her a week’s notice (the notice period specified for the probation period);
• the employee argued she was not in her probation period and was entitled to three months’ notice (the specified post-probation notice period); and
• the employee won.

So why have probationary periods at all?

The usual reasons given for employers having a probationary period is to give them a chance to, shall we say, “suss out” the employee and prompt a reminder to do so.

However, the reality is that the law allows an employer to “suss out” an employee for nearly two years before they accrue the right to claim a standard unfair dismissal.

Of course, in most cases, the right to make discrimination and whistleblowing claims arise at the outset of the relationship with the prospective or new employee.

It is true that there are a few exceptions, whereby unfair dismissal can be claimed within the first two years, for example, a dismissal connected with pregnancy.

However, such a dismissal would be unfair even if it occurred during a probationary period.

It is also true that discrimination claims are equally prohibited within a probationary period.

Also, do remember, the use of the statutory notice period to extend service beyond the dismissal pre- two years-service where such a dismissal is effective very close the two-year mark.

Without getting bogged down in that plethora of sub-two-year claims, during the first two years of employment, broadly speaking, employers are arguably permitted to dismiss an employee without having to give a reason.

Furthermore, the minimum notice period in law that an employer has to give to an employee during the first two years is only one week (once the first month has passed).

I should also add here that there are dozens of types of claims employees and workers alike can claim that don’t require a qualifying period of service, so, again, why do we need a probationary period?

My view is that having a probation period gives no protection to the employer that is not already provided by the law.

If an employer wishes to assess an employee after, say, three months or six months, they are perfectly entitled to do so.

If they wish to terminate the employment then they can do so by giving a week’s notice during the first year of employment (unless of course, the contract says otherwise) and without giving a reason, it matters not a jot that the employee is not in a “probation period”.

The law gives significant freedom and flexibility to employers – why restrict that freedom by imposing obligations and burdens and creating possible problems by having a probation period?

Why To not have Probationary periods?

They can, in my experience, cause problems and as the above case makes clear, those problems can be expensive. Further problems with probation periods can also include the following:  

• They can often be rather sloppily drafted, which creates problems in contract law.
• What if the probationary period is stated to be three months? Does that mean it is fixed and so the employer cannot terminate within that period?
• What if the employer forgets to review the position at the three-month point? Is the employee still in the probation period or not?

I stress this is my view, based upon over 30 years of experience as an employment lawyer.

I would be interested to hear from any employer who has them and has found them to be beneficial and specifically why so? You can email me your thoughts and experiences to enquiries@bridgeehr.co.uk