Employment Law – Myth 3

Myth: An employee’s service does not start until they have passed their probationary period

There is no magic about the use by an employer of a probationary period and it has no meaning in law. This means that an employee’s service starts at day 1 of the relationship and they have both contractual and statutory rights and protections, according to their length of service. [Please see Employment Law Myth 2].

Whilst the term “probationary period” has no legal meaning, a probationary period is a useful tool for both employer and employee to assess whether the employee is suitable for the role and the role is suitable to the employee.  Used properly, it provides both parties with a date to work towards in making a decision about the relationship. Also a probationary period can be drafted into the contract of employment to give an employer flexibility in the terms which apply during that period, for example: a lower salary than might otherwise apply for someone doing the role the probationer has been employed to do, a shorter notice period, no benefits and the dis-application of the disciplinary procedure.

It also follows that if promises have been made about the package to which the employee will be entitled on successful completion of the probationary period, both parties must be clear about when the probationary period has been successfully completed. This should be done in writing. [And both parties should also be clear, preferably because this has been written down, about what promises have been made!].

It is also good practice for the employer to ensure the employee knows how they are doing, by regular monthly reviews, and they also know if and when the probationary period is going to be extended, the reasons for this and the length of the extension. There is no legal obligation to provide reasons for extending a probationary period, or even to provide reasons should the employment be terminated during or at the end of the probationary period.  However the giving of sound reasons based on objective evidence, for example, of poor conduct or performance, will go some way to protecting the employer against inferences being drawn that the real reason for the dismissal was discriminatory or was for a reason where the qualifying period of service (see below) is not needed.

Even though the qualifying period of employment to make a tribunal claim for unfair dismissal is now 2 years (increased from 1 year in April 2012), I would not suggest that a probationary period lasts any longer (including any extension) than 9 – 12 months as in normal circumstances, this should be more than enough time to reach a conclusion.

Please ask me a question if you need more information about this topic!


Employment Law – Myth 1

Myth: There is no contract of employment if there’s nothing in writing

Employees have an agreement with their employer, even if they have never received a written contract of employment.

At its most basic,  the employee turns up for work at their place of work, does the job their employer asks them to do, finishes work at a specific time and gets paid for their work, either weekly or monthly, at a rate of pay which has been agreed at the outset of the relationship. Also, if there’s nothing in writing, an employee is entitled to a reasonable period of notice should the employment be terminated.The relevant period of notice will be determined by looking at the notice period to which other employees doing the same role or of a role of similar status are entitled to.  This could have unintended consequences for an employer, particularly for example, should the employment be terminated during a probationary period when an employer might want the flexibility to terminate on a much shorter period of notice.

Even a verbal agreement can be enforced by the employee in the courts or tribunal.

To avoid these unintended consequences, and to comply with their statutory obligations, an employer should issue all employees, whose role is intended to last for 1 month or more, what is referred to as “a written statement of employment particulars” (as required by section 1 of the Employment Rights Act 1996).  This is required to be done within 2 months of starting employment and applies even though the employer may require the employee to undergo a probationary period before confirming their employment.

The terms required by section 1 cover: employer’s name, job title, start date, continuous employment date, place of work, hours of work, pay – how much and when paid, holiday, sickness and sick pay, notice periods and termination, notes about disciplinary and grievance procedures, pension provision, the duration if the work is temporary or the end date if the role is on a fixed term contract, any requirement to work abroad for more than one continuous month and, if so, the specific terms which apply to that work and any applicable collective agreements (for certain industry sectors).

An employee cannot bring a tribunal claim solely on the basis that their employer has failed to provide them with a written statement but can combine such a claim with a claim of, for example, unfair dismissal. In those circumstances, an Employment Tribunal can award the employee between 2 and 4 weeks’ gross pay for failing to provide them with a section 1 statement or to provide them with some of the required particulars.