What Employment Law applies during probationary periods?
By Caitlin Davis
By Caitlin DavisEstimated time: 7 minutes
Estimated time: 7 minutesJuly 20, 2022
July 20, 2022Employers 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 |
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| Statutory maternity pay |
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This assumes probation period is 6 months or less — Statutory maternity pay applies from 26 weeks service. | |
| Statutory paternity pay (birth and adoption) |
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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 |
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| Written statement of particulars |
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| Itemised pay statement |
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| Right not to suffer unauthorised deductions |
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| Ordinary maternity leave |
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| The right to request flexible working |
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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. |
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| The right to bring an ‘ordinary’ unfair dismissal claim |
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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 |
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| Redundancy payment |
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2 years of service required for redundancy payments | |
| Daily rest |
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Under the Working Time Regulations 1998 (“the WTR”) | |
| Weekly rest |
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Under the WTR | |
| Rest breaks |
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Under the WTR | |
| Annual leave |
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Under the WTR | |
| National Minimum Wage |
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| Right to be accompanied to a grievance or disciplinary hearing |
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| Part-time worker discrimination |
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| Right to be informed and/or consulted under the Transfer of Undertakings (Protection of Employment) Regulations 2006 |
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These are the requirements to inform employees who are subject to a TUPE transfer about the proposed transfer and consult about any proposed changes. |
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| Right to bring a claim for failing to make reasonable adjustments for a disabled person |
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Right to bring a direct or indirect discrimination claim, including arising from:
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How can Citation help?
Employment Law isn’t the easiest thing to understand. Luckily, the Citation team is made of HR & Employment Law experts, on-hand 24/7 to guide you through the complicated bits of being an employer.
If you need help writing watertight contracts, creating a legally sound employee handbook or just need an expert eye casting over your HR processes, Citation is the perfect partner.
If you’re interested in working with us, just get in touch with the team on 0345 844 1111 or send us an email at hello@citation.co.uk.