Notice Periods During Probation

Andrew Willis

Andrew Willis

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12 Sep 2019

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A probationary period is a trial run with your business for a new starter. During this time, the rules surrounding notice periods can be relaxed.

It’s important you treat your new member of staff with respect, but if it’s not working out and you want to remove them there’s a process to follow.

This guide explains the basic and more complex aspects of employee trial runs.

 

Is there a notice period during probation?

There doesn’t have to be. But we recommend you specify one in your contract of employment.

Even if you don’t specify one, employees still have to work a notice period during probation by law.

 

How long is a notice period during probation?

There’s no set rule for how long a notice period has to be, but there is a legal minimum.

If you’re unsure, a good rule to follow is to halve what their notice period would be once their probationary period is over.

For example, if their employment contract states their notice period is four weeks, you should make their probationary notice two weeks.

 

What’s the minimum notice period during probation?

If the employee decides to leave the business and you’ve not set out a notice period in their contract, they must work the statutory minimum—which is one week.

The statutory minimum also applies if you dismiss an employee and haven’t set out a notice period in their contract.

There are a few cases where you may dismiss an employee without notice. For example, on the grounds of gross misconduct.

However, in most cases, statutory notice will apply.

 

Could you face a resignation without a notice period during probation?

No. The employee has to work the statutory notice period if you don’t specify one in their employment contract.

 

Employment law and notice periods during probation

You have certain rights during an employee’s run that you should familiarise your business with.

There are various important employment laws you’ll need to consider.

For example, an employee has to work their notice period unless there’s an agreement between you to shorten it.

Also, the individual remains an employee of your company, and under the organisation’s control, until the notice period expires.

And if an employee has planned annual leave they can legally take this time off. However, you can insist employees take accrued leave instead if you set this out in their contract.

 

What are your employees’ rights?

Let’s look at probation from another perspective—the employee and their notice period during probation.

An individual who’s been with the business for less than a month doesn’t have any legal right to a notice period (other than the one week if they resign).

However, this doesn’t mean the employee doesn’t have rights. From the first day of employment they’ll receive:

  • Receive minimum wage.
  • Holiday pay.
  • An itemised pay statement.

Finally, you may think you’re safe from unfair dismissal claims whilst an employee is working their probationary period. This is mostly true, an employee can only claim unfair dismissal after working for you for two years.

However, there are certain types of unfair dismissal than apply even during probation. Especially, dismissal as a result of discrimination.

If you dismiss an employee because of a protected characteristic, or in relation to one, you could still face a claim.

 

Expert support

Hopefully, you’ve now got all the answers you need, but if you do require further support, speak to a Croner expert today on 0808 145 3380.

About the Author

Andrew Willis

Andrew Willis is the senior manager of the Litigation and Employment Department and assumes additional responsibility for managing Croner’s office based telephone HR advisory teams, who specialise in Employment law, HR and Commercial Legal advice for large organisations across the United Kingdom.

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Andrew Willis

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