Updated for 2013.

You’ve been offered a new job, but your new Employer has made you a conditional job offer that includes a probationary period for the first few months of your employment. What does that mean?

Probationary periods are often for the first 3 or 6 months of your new job and are used by your Employer to assess your performance and conduct during your early stages of employment, to make sure they are happy with your work.

However, probationary periods have no legal basis, so what do they actually mean? Here we give you the basic facts:

  • Your Employment starts from your original start date, not from the date at the end of your probationary period (when you are ‘confirmed’ in the job).
  • This means that your length of service, which is essential in determining your eligibility for statutory employment rights, starts from your original start date and is not affected by the probationary period.

If your Employer is not satisfied with your performance or conduct during your probationary period:

  • They may have the option to extend the probationary period if this is written into your contract (but again this does not affect your original start date) or

Your Employer can dismiss you legally if they are unhappy with your performance or conduct if:

  • They follow correct disciplinary procedures (your Employer may also have a separate probationary period policy which outlines their procedures to end your employment) and
  • However, your Employer does not have to wait until the end of your probationary period to dismiss you.

If your Employer does not follow a disciplinary procedure to dismiss you, and your Employers disciplinary procedure is contractual, then they may be in breach of contract.

If you believe that your dismissal is unfair and you have 2 years service with your Employer (from your original start date, not from the end of your probationary period) you can bring a claim for unfair dismissal to an Employment Tribunal. You can bring a claim for discrimination to an Employment Tribunal at any point in your employment, from day 1, you do not need to have 2 years service if you believe you have been discriminated against.

An important Employment Appeal Tribunal decision in 2007 (Przybylska v Modus Telecom Limited) found that where there is an express contractual right for the Employer to extend (or not) the probationary period, within the initial probationary period timescale, and the Employer does not do this they lose their right to extend the probation.  Therefore, the probationary period is completed by ‘default’ and the employee is therefore entitled to the notice periods that apply after the probationary period (which are usually longer than those during the probationary period).

The brief details of the case are:  Miss Przybylska was employed on a 3 month probationary basis from 3 October 2005.  During this probation her employment could be terminated with a week’s notice and Modus reserved the right to extend the probationary period.  Miss Przybylska was on holiday when her probationary period expired on 2nd January 2006 and Modus had not extended her probationary period when her holiday began.  At the end of January 2006 she was dismissed with one weeks’s pay in lieu of notice.

She complained of breach of contract to the Employment Tribunal (she said she should have been paid 3 months notice after completion of her probationary period).  The ET said it was reasonable for the probationary period to continue until she had received an indication of whether she had successfully completed it or not.  The EAT disagreed, saying that the assessment should have taken place during the probationary period and Modus should have foreseen she would have been on holiday at its end; they could have extended the probationary period if they had not been able to complete her assessment before the holiday.  The EAT felt it was not necessary to imply a term which automatically extended the probationary period.

If you are an Employer and need ongoing professional help with any staff/freelance issues, or a Contractor/Freelancer/Employee with a complicated employment related problem, then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.

  • christopher

    What is the point of probationary periods when you have done the job before

    • http://www.thehrkiosk.co.uk Lesley Furber

      Hi Christopher, any Employer has the right to use them (properly) to ascertain whether someone is suitable for the job. Regards, Lesley

  • christopher

    Its just in a different place

  • Graeme

    I had a 6 month probation extended but didn’t have the meeting till well into 7 months, it was extended for 6 weeks, that was 2 months ago and have now had no new review, does this mean I should be on a full contract by default?

    • http://www.thehrkiosk.co.uk Lesley Furber

      Hi Graeme, you can read about a case above on this subject – basically if it is written in your contract that your Employer can extend (or not) the probationary period, within the initial
      probationary period timescale, and the Employer does not do this they
      lose their right to extend the probation; so therefore your probationary period should be over and you are employed by default. Regards, Lesley, The HRkiosk

      • Ian

        Hi Lesley. Im my case, my employer has stated that ‘during the probationary period and a reasonable period immediately following it ( if the Company has not concluded its review of your continued employment at the time the probationary period ends)
        So is this allowed? and if so, what time would be classed as reasonable? I have been given a review date but it will be 8 months after I started with them ( they gave me a 6 month probationary period of which I have had no reviews in that time)

        • http://www.thehrkiosk.co.uk Lesley Furber

          Hi Ian, thanks for your message. It’s a bizarre way of wording it, but it’s probably acceptable. Reasonable is undefined but I doubt it should be more than a month or two. Good luck. Regards, Lesley, The HR Kiosk

          • Ian

            Thanks for your help – It’s much appreciated .

  • Graeme

    Just to add the reasons for extension were questionable to say the least.

  • Nik Holt

    I have a 4 week probation for my new job and unfortunately I got really bad tonsillitis on the first day of my second week and couldn’t go into work and my boss has told me he hasn’t got room for me anymore because he thinks I’m lying and he may fire me. If he does fire me, does he have to pay me for the world I did last week?

    • http://www.thehrkiosk.co.uk Lesley Furber

      Hi Nik, thanks for your message. Yes he has to pay you for all the work you have done, he can’t not do this. Good luck. Regards, Lesley, The HR Kiosk

  • Chris

    Hi I have just been dismissed at the end of my extended probation period and in my opinion unfairly as I know it is due to company circumstances rather my performance. However in any case I was not informed that my 6 months probation was being extended until 4 weeks after the original 6 months had ended, they then extended by 3 months and then informed me on 17th Dec that they were ending my employment due to unsuccessful probation with no reason given and no HR presence just my line manager I have been given no letter and he bought I would b happy they would give me a months pay provided I “didn’t make any noise” I should have 3 months notice under my contract if I have completed my probation. Am i correct in assuming that I can view my probation as complete due to late notification of extension and that it should have been a maximum 2 months extension?

    Can I also assume they have Breached my contrac as have never had a disciplinary procedure nor HR presence at the meeting my manager said he felt it was better not to have HR presence.

    Thanks

    Chris

  • Charles Robertson

    I had successfully completed 4 months of my 6 month probationary period as a contractor [not an employee], when my contract was terminated without notice. My contract stated that I would be working remotely [at home] for the entire length [6 months] of my probationary period.

    I was told that the reason for my contract ending, was because the company wanted only to use in-house employees from that point onwards. So, my contract was not terminated because I was in any way incompetent. I have e-mails from the employer to prove this, and of course, a signed contract stating the points outlined above.

    The employer never carried out any probationary assessments during the time I was working for this company. But, at no point, was I told that my work was sub standard. I was always punctual and engaging during our daily morning meeting, and I was never cited for misconduct.

    The project I was working on, was completed successfully.

    Do you think that I am legally entitled to claim for the 40 days of paid work that was still outstanding on my contract?

    Thanks for your help.

    • http://www.thehrkiosk.co.uk Lesley Furber

      Hi Charles, thanks for your message. This is going to depend entirely how your contract is worded, but I expect it’s unlikely you could make that claim. You need to read the termination clauses in your contract and see what they say. Good luck. Regards, Lesley, The HR Kiosk

      • Charles Robertson

        Thanks Lesley for your reply. Here is my contract:

        Dear Charles,

        Further to our
        recent meeting, I am pleased to offer you the position of Senior Developer,
        reporting directly to Debbie Vincent.
        Location for employment will be home based but you will need to attend planning
        and technical meetings at our offices at 6, The Forum, Icknield Way, Tring,
        HP23 4JY 1 day every 2 weeks. Start date to be the w/c `12th July
        2015

        Remuneration:

        We agreed that
        we would take a 6 month probation period based on a Salary of £200 per day.

        After the period of 6 months we
        would be delighted to consider a full time position should you wish. This would
        offer you additional benefits of a salary in the range of £50,000/annum along
        with pension, private health, 30 days paid holiday (22 days plus 8 public
        holidays) and flexible working hours to be agreed.

        We are delighted
        to offer the opportunity to join SportFocus and look forward to welcoming you
        to the company and enjoying a long career with us. Please sign both copies of this offer
        letter, retaining one copy for you and return the other to me.

        • http://www.thehrkiosk.co.uk Lesley Furber

          Are there no termination clauses in the contract? I do have to say you might want to delete this detail from here as obviously it’s a public site? Regards, Lesley

          • Charles Robertson

            Thanks again Lesley. I very much appreciate your help.

            There are no terminations clauses in the contract. The reasons cited for termination are:

            1) no more work available
            2) no more budget available
            3) technical developers cannot work remotely anymore

            My contract clearly states that I am entitled to work remotely for the duration of my contract.

            Strangely, the company employed 2 new developers soon after my termination.

            I will delete my previous post, but to be honest, there are no details in it, that are sensitive. No phone numbers etc…

          • http://www.thehrkiosk.co.uk Lesley Furber

            Hi Charles, there is probably nothing you can do I’m afraid. You might want to get a lawyer to look over the contract though, to see if there may be a claim for the payment for the work you have not completed. Good luck. Lesley

          • Charles Robertson

            Thanks Lesley for your reply. Yes, I was hoping that I could get the employer to pay for the remaining period of my contract [2 months]. I was advised, by a solicitor, that it would come under ‘wrongful dismissal’ for breach of contract. The main problem is that I was unaware that my contract had been terminated for at least 2 months. If I had been aware, I could have started looking for work with a new employer, at the end of November 2015. Instead, it took them nearly 2 months, to admit that my contract had actually been terminated on November 20th 2015. I also figure that they might be guilty of discriminating between remote contractors & in-house employees. Their employment strategy changed whilst my contract was still in progress.
            One of the reasons they gave for the termination, was that they only wanted to employ in-house developers. My contract explicitly states that I was entitled to work from home for the entire 6 month contract period. There seem to be multiple failures here on the part my employer. The question is, was my employer just acting unethically or was it acting unlawfully?

  • charlotte

    Would you use a probabtion period for a member of staff employed over two years who is offered a promotion to a new role?

    • http://www.thehrkiosk.co.uk Lesley Furber

      Hi Charlotte, you could, but it may be pointless because if you were not happy with their performance then you’d be looking at a dismissal and they’d have enough service to make a claim for unfair dismissal. Regards, Lesley, The HR Kiosk

  • BrownTrousers

    My partner has just been dismissed after completing a 3 month probationary period.

    The reason given is they believe her performance isn’t good enough because she is distracted by the stress of a legal case she is currently involved in. Her last review a month ago was a good one. They have suggested she reapply for the job in six months time. Should she have been given a warning that her performance wasn’t of a high enough standard before this review?

    • http://www.thehrkiosk.co.uk Lesley Furber

      Hi BT, thanks for your message. Yes she should have been given a warning, but I’m afraid there is little she can do about this, apart from appealing the dismissal, which she may want to do. Good luck. Regards, Lesley, The HR Kiosk

  • Tony Mark

    My probation that was meant to be the 31st December finally happened on the 20th January-about three weeks late.
    My direct supervisor has passed me on everything but another supervisor claimed he was told by a colleague that i was not willing to learn when i worked with them at another site and as a result was extending my probation by another three(3) months.
    Now my questions are:
    (1) Was he right to have acted based on the information my colleague gave in a sensitive matter like this?
    (2) How sure is he about what he was told?
    (3) My direct supervisor with whom i have worked over the past three months is happy with my performance and does not have any issues with passing me straightaway.
    (4) Over the two days i worked at that site, nothing happened as I was given tasks which i completed without complaints from any quarter.

    I am trying to understand the possibility of taking colleagues verbal judgments into account without evidence and/or reasons to do so.

    • http://www.thehrkiosk.co.uk Lesley Furber

      Hi Tony, could you ask your direct supervisor to talk to the other supervisor. They should take more than one person’s information into account in this situation, but each company will have their own ‘standards’ that need to be met. good luck. Regards, Lesley, The HR Kiosk

  • Mandy Feakes

    My daughter was dismissed from work, her first job. she worked as bank staff for 3 months then she was taken on as full time member with a six month probationary period. She thought the probationary period ended six months from the original contract and when she asked her manager she was verbally told she had successfully completed it. Only to be told a month later that in fact it ended six months after the second contract started. At this time, six months after her second contract started, her manager raised some concerns about some aspects of her progress, so extended the period for three months. During this period no one discussed with her, her performance or raised any concerns so she thought she was improving. Out of the blue her contract was terminated. My concern is that if her performance was not improving someone should have been discussing this. Can she appeal this dismissal? Because she was dismissed within the probation period the normal disciplinary procedures were not followed therefore not giving her a chance to further improve. She worked for this employer for one year and 3 weeks and was escorted off the premises. She worked hard and was committed and loyal member of staff, does she have any rights to appeal this?

    • http://www.thehrkiosk.co.uk Lesley Furber

      Hi Mandy, thanks for your message. Some form of disciplinary procedure should be followed during a probationary period, and she should have been told if there were concerns about her performance. She does have a right of appeal against her dismissal and she should do this. Unfortunately, apart from appealing, there is little else she can do, as she does not have unfair dismissal rights until she has been there 2 years. Good luck with this. Regards, Lesley, The HR Kiosk

      • Mandy Feakes

        Lesley thank you for your comments and advice which have been very useful. If you do not mind I have a couple more questions. Her contract actually started on 2nd April 2015 she was not informed by her manager that the probationary period was to be extended until a meeting on 22nd October, three weeks later. I understand from information below that at this point she is employed by default and should receive a full four weeks notice and not the one week she did receive. Although she was not employed for the statutory two years and cannot claim unfair dismissal does she have a legal right to be paid the correct amount and if her employer doesnt pa, what rights does she have?

        • http://www.thehrkiosk.co.uk Lesley Furber

          Hi Mandy, she should say this at her Appeal; it’s likely that her Employer will argue against this, but it is worth asking for the correct notice as she presumed she had been made permanent. Regards, Lesley

  • Martin

    I have just been dismissed this week from a Global role after 3 weeks of my probationary period with the reason cited as a company restructure. I left a my old company in mid December and started my new role the beginning of January. At my old company I had senior management role and had very well paid position and after 8 months of negotiation on this new role for the new company. On my termination interview with the HR Director who was 2 weeks in to her new position stated that she knew about my position being at risk the first day I met her on day 7 of my employment. The company has given me 1 weeks notice and no compensation what so ever. All communication with my last company has completely stopped and I cant even to get them to acknowledge mails, incurred expenses or a payslip.
    As you can imagine this is not a great start to the year for me, after being promised stock options with the view that the company would be sold in 2-3 years and a nice contribution to my pension pot. I understand that my rights during my probationary period are limited and from what I have read I cant see great recourse form me to try and address this. I would if I understood that that there is a good chance of winning a “reasonable” claim, but as you can imagine I need to try and spread whatever savings I have to try an secure something new.
    Any advice would be appreciated

    • http://www.thehrkiosk.co.uk Lesley Furber

      Hi Martin, do you have anything in writing about promised stock options etc etc…… as you may be able to make a claim for breach of contract, especially if you can find out when the company actually realised they would be doing this (if you can find out they were considering this before you started that would help your claim). It might be worth phoning Acas to see if they think you may have a claim of any description. Good luck. Regards, Lesley, The HR Kiosk

      • Martin

        thanks Lesley

  • Ray

    Hi, I have been workin with the same company for 17 years since i left school and started as an apprentice with the usual 6 weeks trial period and i was promoted to the deputy heads position after 4 years with no probation period and now i have been offered the head greenkeepers job due to him retiring at the end of next month and have been told i would have to serve a 6 months probation period from the beginning of March without full pay for this position until after the 6 months and i feel this is a bit unfair as i have been deputy head for past 13 years and i am obviously competent in role of head as i have covered this position when head greenkeeper has been on holiday or of sick in past 13 years without any problems or complaints. I was just wundering if you think this is right or if there is any advice you could give me to try and reduce this probation period? as i have had nothing in writting or new contract yet

    • http://www.thehrkiosk.co.uk Lesley Furber

      Hi Ray, thanks for your message. This does sound unfair, but there is nothing to stop a Company requiring a probationary period when promoting. However, if your probationary period was not successful then you could have an unfair dismissal claim. Can you talk to them to explain your reservations about this and find out why they think this is necessary? And see if they will agree to a shorter period? Good luck. Regards, Lesley, The HR Kiosk

  • alan

    So just to be clear – employers cannot officially extend probation after the original probation time has passed? I have a situation where my period expired, but I had no review/assessment at any point in this period and received no official notification I had passed probation. Then a month after the original period ended I received notification that my probation was being extended. Thanks

    • http://www.thehrkiosk.co.uk Lesley Furber

      Hi Alan, if it is written into your contract that your Employer can extend your probationary period, and they do not confirm they are doing this, then yes the Courts found that the probationary had been ‘passed’ automatically. Unfortunately, I don’t think many Employers are aware of this! You might want to bring it to their attention? Good luck. Regards, Lesley, The HR Kiosk

      • alan

        Thanks so much :)

  • Lucy

    Hello Lesley, I have a question I have been working for 5 months in this company, the probation period in my contract is 3 months,after 3 months work my probation period was extended for 1 month the reason they gave me to extended my probation was my performance wasn’t good enough (that i totally disagree) and then after another month they extend again for another month, in my contract theres nothing about probation extension the only thing it’s says 3 months probation period.Also they dont allow me to take Holidays saying that i am in my probation period and Im a unreliable employee because I asked one day off in December ,Has the company the right to extend my probation without it be written in my contract ???