probationary period

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.

Probations 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 facts.

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 period timescale, and the Employer does not do this they lose their right to extend the probation. Therefore, the probation is completed by ‘default’ and the employee is therefore entitled to the notice periods that apply after the period (which are usually longer than those during the probation).

The brief details of the case are: Miss Przybylska was employed on a 3 month probation 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 probationar. Miss Przybylska was on holiday when her probation expired on 2nd January 2006 and Modus had not extended her probation 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’ve been paid three 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’ve taken place during the probationary period and Modus should’ve foreseen she would’ve been on holiday at its end; they could’ve extended the probationary period if they hadn’t been able to complete her assessment before the holiday. The EAT felt it wasn’t necessary to imply a term which automatically extended the probationary period.