What Employment Law applies during probationary periods?

Your new employee will be exempt from some statutory rights; however, there are plenty of employment rights that apply from day one of employment with you. Find out more in our guide.

By Caitlin Davis

Estimated time: 7 minutes

July 20, 2022

Employers often require new hires to complete a probationary period before the start of their employment with the business.

 

Probation periods benefit both you and the new member of your team. It allows each of you to see if you’re a good fit and to see whether the employee is likely to work out in the long-term.

 

Probation periods are usually for a fixed period – usually three or six months – and your new employee will be exempt from some statutory rights.

 

However, there are plenty of employment rights that apply from day one of employment with you. So, it’s important for you as an employer to make sure you’re getting all the details right and you’re still complying with the law. Below we have set out some of the most relevant employment rights and confirmed whether they apply within probation. However, this is not an exhaustive list!

Employee right Applies on probation Doesn’t apply on probation Notes
Statutory sick pay

Statutory maternity pay

This assumes probation period is 6 months or less — Statutory maternity pay applies from 26 weeks service.
Statutory paternity pay
(birth and adoption)

This assumes probation period is 6 months or less — Statutory paternity pay applies from 26 weeks service.
Right to bring a breach of contract claim – e.g. for notice pay

Written statement of particulars

Itemised pay statement

Right not to suffer unauthorised deductions

Ordinary maternity leave

The right to request flexible working

This assumes probation period is 6 months or less – the right to request flexible working applies from 26 weeks’ service.

The government is proposing to give all employees the right to request flexible working from day one of employment. There is no date for the implementation of the proposal as of yet.

The right to bring an ‘ordinary’ unfair dismissal claim

This only applies after 2 years’ employment
The right to bring an ‘automatic’ unfair dismissal claim – e.g. on the grounds of Health & Safety whistleblowing

Redundancy payment

2 years of service required for redundancy payments
Daily rest

Under the Working Time Regulations 1998 (“the WTR”)
Weekly rest

Under the WTR
Rest breaks

Under the WTR
Annual leave

Under the WTR
National Minimum Wage

Right to be accompanied to a
grievance or disciplinary hearing

Part-time worker discrimination

Right to be informed and/or consulted under the Transfer
of Undertakings (Protection of
Employment) Regulations 2006

These are the requirements to inform employees who are subject to a TUPE transfer about the proposed transfer and consult about any proposed
changes.
Right to bring a claim for failing to make reasonable adjustments for a disabled person

Right to bring a direct or indirect discrimination claim, including arising from:

  • Sex
  • Race and/or religion
  • Disability
  • Gender reassignment
  • Pregnancy and maternity
  • Age
  • Sexual orientation

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