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Do employment rights differ during the probation period?


To be absolutely clear, a probation period has no bearing on the legal rights of employees.

The purpose of a probation period is to establish whether the role is suitable and / or if any additional training is required to ensure the employee is successful in their new role.

Probation periods are ordinarily less than 2 years and consequently employees will not have the right to claim unfair dismissal, but other than that, they have the same rights as any other employee.

There is no reason why employers have to wait until the end of the probation period to dismiss. Especially if measures have been taken to assist the new recruit in their role but their performance remains below expectations.

Notice:

If terminated, employees on probation will need to be paid their notice, but this can be paid in lieu AND, if employers have been sensible (which all our clients have been) their contracts will state a shorter notice period during probation.

If the new recruit has committed an act of gross misconduct, no notice at all needs to be paid.

The absolute minimum amount of notice employers must give during the first year, is one week (unless the new recruit is dismissed before the end of their first month of continuous employment).

Process:

Again, if employers have been carefully advised (as all our clients have been), and providing there is no discrimination involved, they are free to dismiss during the probationary period without going through a particular process. This means, the employer isn't required to offer the employee the right to appeal.

NOTE: in order for an employer to dismiss during probation without following a particular process, they MUST CLEARLY STATE this right in their Disciplinary and Performance Management Policy and the employment contract otherwise they could potentially be found in breach of contract.

If you would like any further information regarding your rights as an employer during the probation period, please call The Helens for a free consultation.


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