The statutory trial period

Employees have the right to a statutory trial period of four weeks in the new job. These four weeks are defined as calendar, not working weeks (Benton v Sanderson Kayser [1989] IRLR 19).

The employer should give the worker a written copy of the agreement specifying the terms and conditions of the new work and the date of termination of the trial period (section 138, ERA 96).

If an employer refuses to offer a trial period, the employee can claim unfair dismissal (Elliot v Richard Stump [1987] IRLR 215). If the employee agrees to a trial period they will still be entitled to redundancy pay if the post proves unsuitable, as long as they reject it within that trial period. If they work beyond the four weeks, they will lose the right to statutory redundancy pay (Reality (White Arrow Express) Ltd v O’Hara EAT/0447/03).

The statutory trial period cannot usually be extended without losing the right to a statutory redundancy payment (except for the purpose of retraining). However, negotiators can sign contractual agreements that give longer (but not shorter) trial periods (Inchcape Retail v Large [2003] EAT/0500/03/2711).

A refusal of a trial period may make it harder to show that a new job was unsuitable, although this will depend on how different it is from the old job.