In light of a recent EAT ruling, Chris Kisby highlights the need for contractual terms relating to probationary periods to be phrased carefully

The Employment Rights Act will reduce the qualifying period for new employees to gain unfair dismissal protection from two years to just six months. While this is a substantial change, it is likely to be preferred by most businesses when compared to the original proposal, which called for the introduction of day-one protection and a statutory probation period.

The six-month period will still allow employers to assess a new starter’s suitability for the role during a contractual probationary period. However, it will be important that the contractual terms concerning the probationary period are carefully considered by employers, as was shown in the recent case of Betancourt v United Kingdom Research and Innovation.

Facts

Mr Betancourt was employed as a part-time contracts co-ordinator on a 20-hour per week contract. The terms relating to a six-month probationary period were also set out in the contract. It stated that the appointment would be confirmed “provided your performance, attendance and conduct have been satisfactory”.

Further provision was made in the probation policy, which stated that “within the six-month probationary period all MRC employees should receive a three-month assessment and a probation assessment at the six-month stage of their employment”.

The assessments were to decide if the employee had shown the “values,...

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