Since the employer 'pays the piper' they are entitled to 'call the tune' in the framing of rules and requiring adherence by their employees. Some employees will find certain environments amenable - others will not. Since it is impossible for the exact environment to be interpreted and explained during the interview process there is an element of luck in recruitment. Accordingly, it may be advisable to commence employment with a probationary period during which time both parties 'try out' the relationship without long-term commitment - possibly at an introductory salary which could be increased once performance is assured.

Imposing a trial period is less of a risk for the employer than the employee, since the latter may well have left other permanent employment to take up the new position. In addition, an employee has no right to complain of unfair dismissal until they have completed a year's service - although there are a range of other breaches of employment protection where no service requirement is necessary.

The employer can insist on a probationary period of any length, within reason. Legally employees must be given a CONTRACT within 8 weeks of their start date and it may be that this could be a logical period, although the period more commonly used is three months.

Stipulating a probationary period is not constrained legally - it is a matter of the contractual terms between the parties. Similarly, employers can use any wording that they think is appropriate but it should cover all eventualities.

Example of Probationary Clause

This employment is subject to a probationary period of [length]. By the expiry of that period a decision will be made regarding further employment. This decision could be:

  • that permanent employment is confirmed; or

  • that a further period of probation is required before a decision is made; or

  • that employment should be confirmed.

    During the probationary period (and any extension of such period) normal notice [e.g. one week] rules apply.

  • Such a clause provides flexibility to the employer to terminate employment earlier than the expected expiry date of the period, or to extend the period if they are unsure about the performance etc. It is important to stipulate that a week's notice can terminate employment as loose wording of such clauses may unintentionally create a fixed term contract of the period, thus requiring the employer to pay for the whole period. For example, if the clause stated the decision will be made 'at the end of the probationary period' this infers that the probationer will be employed for at least three months.

    Obviously, if the employer is confident the employee is right for the job, the probationary period can be brought to an end before the term stipulated. If, however, there is uncertainty, the period should be extended and, to ensure there is clarity about the situation, it may be advisable to confirm this in writing.

    Example of Extending Probationary Period Letter

    'By a letter dated [xxx] your employment with this organisation was made subject to a probationary period due to expire on [date]. We feel unable at this point to confirm permanent employment and thus wish to extend the probationary period by [x] weeks to [date]. As previously during this period normal notice [e.g. one week] rules apply.'

    It would be logical if unable to confirm permanent employment for the employer to provide some guidance regarding areas of performance etc. which need attention (that is not waiting until the end of the period if performance is unsatisfactory).

    Confirming Employment

    In the interests of clarity, it would be preferable for an employer when deciding that employment can be made permanent, to confirm this in writing.

    'You are aware that we made your appointment subject to a probationary period. I am pleased to be able to confirm that your probationary period has now ended and we can confirm you are now on the permanent payroll of this organisation.'

    The date of the start of the probationary period (not the date permanent employment is confirmed as starting) should be used as the employment start date. It is permissible to state that no paid holiday can be taken during a three month probationary period (but probably not for any longer period) although the amount of holiday entitlement still accrues during that period.

    It may be helpful to devise a probationary period and to set this out.

    1. In certain circumstances the [organisation] may feel unable to confirm permanent employment on recruitment.

    2. Where this is the case a probationary period will be used. Employees will not be regarded as part of the permanent staff until confirmation that their probationary period has come to an end.

    3. Probationary periods will normally last [x] weeks but this may be varied in certain circumstances.

    4. All probationary terms including any extension or waiving will be confirmed in writing.

    It may be advisable to make all appointments subject to:

    a. a probationary period as set out above;

    b. receipt of REFERENCES satisfactory to the employer; and

    c. the receipt of a clear criminal record from the Criminal Records Bureaux.

    Note The DTI advice that there is no requirement to provide paid holiday for an employee whilst they work a three month probationary period. They must accrue such an entitlement which could be taken after the end of the period. Of course, if the employer permits they could take unpaid leave during the period.