On our legal helpline, we often hear “oh no, they aren’t an employee, they haven’t signed a contract” or “no, they’re not employed, they’re still in their probationary period.”
Just because the member of your team has not received a written contract (known as statement of employment particulars in the Employment Rights Act 1996) or are still in a probationary period, does not mean there is not a contract of employment and associated employment rights.
When do they need to receive a written statement of employment particulars by?
Just to be clear – in any event, whether in a probationary period or not, an employee has a right under section 1 of the Employment Rights Act 1996 to receive a statement of employment particulars or ‘contract’ within 2 months. This agreement can contain a probationary period clause if applicable.
There are certain things to be included and wording which must be used in order to make a contract of employment enforceable. We would never recommend writing your own contract of employment and there is a standard template created by ourselves for free use on the BII Website.
View the Staff Contract Builder Here
A single mistake can void your whole contract, so we would strongly recommend that you seek legal advice on any amendments you wish to make to the template.
Formation of a Contract of Employment
If the following elements are present, then a binding contract of employment will be inferred in the absence of any paper document:
- Offer
- Acceptance
- Intention to create legal relations
- There will not be an intention to create legal relations where the object of the relationship is not employment, for example the purpose of having that person within your business might be training or work experience
- Consideration
- The consideration for the contract is that the employee agrees to work in return for remuneration (wages). As such, someone who works voluntarily would not benefit from employee status. It is not always possible to identify the above elements in a transaction.
- However, in relation to BII members, where a team member is doing work and receiving pay for it, it’s safe to assume they do have a contract of employment even where there is nothing written down.
Probationary Periods
A probationary employee is still an employee and therefore entitled to the same treatment as someone who’s role is ‘confirmed’. However, we can see from Tribunal decisions that a decision to dismiss a probationary employee might be justified more easily in comparison with a confirmed employee.
Ultimately, if the probation period is less than two years than dismissal in most cases should be low risk. Always seek guidance
before deciding to dismiss any employee.
If the employee is told that his probation period is for a certain time, this does not amount to a right to be employed for the whole of that specified period and the employer may dismiss the employee lawfully before the probation period is due for review.
When dismissing during the probationary period, the contractual notice period or statutory notice period in the absence of a contract, must still be paid in addition to any other outstanding payments.
If you need help drafting contracts of employment, amending the template we have provided or have any questions in general please get in touch with us and we will be happy to help.
BII Members can contact the Legal & HR Helpline about this or any other issue on: 0330 058 3878
