Probation and Notice Periods – What You Need to Know

Probation period not up yet? Thinking of saying goodbye to a new hire? Then something obviously hasn’t worked out. To ensure their departure goes smoothly, you need to give them the right amount of notice.
But how long should that be when an individual is still in their probation period? And what else do you need to consider? Read on for the answers.

Probation – Not Just For Criminals

Most employers operate a trial period for new employees – also known as a probation period – which can vary from a few days to several weeks or months. The length of probation should be clearly set out in the employee’s contract alongside the employee’s standard notice period.
But what happens if they hand their notice in, or you want them to leave, during their probationary period? Does the standard notice period apply? Or can you legally give less notice and hasten their departure?

It Depends on Length of Service

People with probation periods shorter than one month are not entitled to any notice so you can exit them from your firm immediately.
Of course, notice periods work both ways and employees can notify you of their intent to leave too. Which means you could be left in the lurch if someone leaves within their one-month probation period.
That’s why most organisations stipulate a probation period of three months. This often increases to six months for more senior roles and jobs that are difficult to recruit. By extending the notice period, both employers and employees are protected.
There are two types of notice that employees and employers must give.

Contractual Notice

Contractual notice is the agreed notice period, as set out in the employment contract, that must be given by either side to terminate the arrangement.
You can choose to give more notice than legally required. But of course you cannot give less than the law stipulates.
Typically, contractual notice periods are:

• Less than one week for staff with under one month’s service
• One week for people with between one and six months’ service
• One month for people who have recently passed their probation

These notice periods give both sides a degree of protection and tie in nicely with the following legal minimums.

Statutory Notice

If you don’t include a notice period in your employees’ contracts you have to abide by legally predefined notice periods based on the individual’s length of service:

• Less than one month’s service > no notice
• One month to two years’ service > one week’s notice
• Two years’ service > two week’s notice
• Three years’ service > three week’s notice

The notice periods increase by one week for every complete year of tenure. So someone with eight years’ service would need to give and be given eight weeks’ notice.

Notice Has Been Served – What Happens Next?

This usually depends on who gave notice and the reasons why.
If an employee gave notice and there’s no problem (like performance issues), you will probably want them to work for the duration. This helps your organisation by keeping work moving and giving you time to recruit.
If you’ve given notice to a member of staff during the probation period, it’s usually because performance or attitude is not up to scratch. Which might mean you don’t want the employee to come in.
In this instance, you will still need to pay them for their notice period and you can do this in one of two ways:

1. Pay in lieu of notice – you end the employment before the individual serves their notice and pay them as if they had worked their notice period.
2. Garden leave – the employee serves their notice but doesn’t do any work for your company. This might happen if they are leaving to work for a competitor. Again, they must be paid for the full notice period.

Nobody wants to recruit the wrong person for the role. But occasionally it happens. Protect your business by:

• checking your contracts of employment
• paying notice periods as required
• revisiting your recruitment practices to spot any gaps

If you want help protecting your business from the unexpected, get in touch with Tercus HR.