What rights does an employee have during a probationary period?
Many employment contracts in British Columbia include a probationary period, typically ranging from three to six months, designed to allow both the employer and the employee to assess the suitability of the employment relationship. However, it’s a common misconception that employees have no rights during this period. In reality, employees on probation in British Columbia are afforded significant legal protections from day one of their employment.
Crucially, an employee’s basic rights under the British Columbia Employment Standards Act (ESA) apply immediately upon commencing work, including throughout any probationary period. These fundamental rights encompass entitlement to minimum wage and overtime pay, statutory holiday pay, vacation pay accrual, required rest periods and breaks, and safe working conditions as mandated by occupational health and safety laws. Furthermore, probationary employees are fully protected from discrimination and harassment under the BC Human Rights Code. Being on probation in no way means an employee forfeits these essential statutory safeguards.
While employers often believe they can terminate probationary employees at will, there are important legal limits to this. Under the ESA, if an employee has worked for less than three months, an employer may terminate employment without providing notice or pay in lieu. However, once an employee has completed three months of continuous employment, they become entitled to at least one week’s notice or pay in lieu, with the notice period increasing proportionally with longer service. Beyond statutory requirements, even during probation, employers are obligated to act in good faith. This means that any dismissal must be based on a fair assessment of suitability, such as performance or skills, and cannot be based on arbitrary, improper, or discriminatory grounds.
Indeed, probationary employees are fully protected by the BC Human Rights Code. Employers are legally prohibited from terminating or treating a probationary employee unfairly based on protected grounds, which include race, gender, age, disability, religion, family status, and sexual orientation. If an employee is terminated during their probation for a discriminatory reason, they have the right to file a human rights complaint, regardless of the length of their employment.
For a probationary period to be legally enforceable, its terms must be clearly stated in writing within the employment contract. Courts require that probation clauses be unambiguous, agreed to by the employee before employment commences, and fully compliant with all minimum employment standards. If the employment contract fails to explicitly mention a probationary period, the employee may be entitled to reasonable notice of termination, similar to a permanent employee, should their employment be ended.
In summary, employers cannot utilize a probationary period as a means to circumvent their legal responsibilities. Employees on probation in British Columbia are entitled to fair treatment, protection from discrimination, and, depending on their length of service, appropriate notice or pay in lieu if their employment is terminated. If you are an employee who has been terminated during probation and believe it was unfair, or if you are an employer seeking guidance on managing probationary periods, Northam Law can assist. We regularly advise clients on various employment law matters. Contact us today to discuss your rights and obligations during probation by calling 604-630-2350 or emailing admin@northam-law.com.
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