Guide to diarising expiry of probation, notice and eligibility for unfair dismissal

Calculating exact dates for HR purposes can be of crucial importance if claims are to be avoided.

Probation

An employee’s probationary period starts from their first day of employment.  As an example, an employee starts work on 18 April and has a 3 month probation period.

The notice period during probation is a week increasing to 3 months following the expiry of the probation period.

Here, the probationary period will expire at close of business on 17 July.  If the employer in error calculates that probation expires on 18 April then the probation period will already have expired and the employee may, subject to the wording of the probation clause, be entitled to their full 3 months’ notice upon termination.

A useful safety measure in relation to probation periods is to diarise to review progress regularly throughout the probation period and as a fail-safe to insert wording into the employment contract that the probation period shall not be successfully passed when confirmed in writing (and shall continue to run until that happens).

Notice

The day that notice is given is ignored so the notice period starts to run the day after it is given.  For example, 3 months’ notice given on 18 April starts to run on 19 April and expires at close of business on 18 July (and not close of business on 17 July)

Unfair Dismissal – 2 years’ employment

Sometimes employers seek to terminate employees just before they accrue protection from unfair dismissal by paying in lieu of notice.  This is not without risk as claims for discrimination and/or detriment due to whistleblowing could still follow.

In diarising when the employee will gain protection from unfair dismissal, employers should add 2 years from the start of employment and should then track back 10 days when diarising when the unfair dismissal eligibility will accrue.

The rules above serve as a reminder to employers to closely monitor and diarise key dates accurately, ideally well in advance of expiry.

Employers should always be cautious when considering terminating any employee if they are close to the two years’ service mark or if they have raised any complaints or issues around discrimination or whistleblowing.  If you would like advice before terminating any employee or if you would like a review of your employment contract, please speak to David Greenhalgh on 020 3603 2177.


This article/blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.

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