Trial Period Rules
There are two types of trial period: statutory trial periods of 4 weeks when an employee is offered suitable alternative employment in a redundancy situation (s.138 ERA 1996), and contractual trial periods which are informal arrangements with no specific statutory framework.
Last updated: February 2025
4 weeks
Statutory trial length
Written retraining agreement only
Extension
Preserved if trial fails
Redundancy pay
What the Law Says
Section 138 of the Employment Rights Act 1996 provides a statutory 4-week trial period when a redundant employee is offered and accepts alternative employment on different terms. If the employee or employer terminates during this period, the employee is treated as dismissed for redundancy and retains the right to statutory redundancy pay. The trial can be extended beyond 4 weeks only for retraining purposes under a written agreement.
Your Obligations as an Employer
- Offer a statutory trial period when providing alternative employment in redundancy
- Limit the statutory trial to 4 weeks unless a written retraining agreement extends it
- Preserve the employee's right to redundancy pay if the trial is unsuccessful
- Distinguish between statutory trial periods and contractual probation periods
What to Include in Contracts
For redundancy alternative employment, confirm the 4-week statutory trial period in writing, specify any extended retraining period with dates and terms, and confirm redundancy pay is preserved if the trial fails. For contractual trial periods, treat as probation clauses.
View related contract templateCommon Mistakes
- Extending the statutory 4-week trial without a written retraining agreement
- Confusing statutory trial periods with contractual probation periods
- Not informing the employee that redundancy pay is preserved if the trial fails
FAQ
What happens if the employee refuses the trial period?
If the employee unreasonably refuses a suitable alternative role (including the trial period), they may lose their entitlement to statutory redundancy pay. Whether the refusal is reasonable depends on the terms, location, status, and nature of the alternative work compared to the original role.
Can a statutory trial period be used outside redundancy?
No. The statutory 4-week trial period under s.138 ERA 1996 only applies when alternative employment is offered in a redundancy situation. Outside redundancy, any trial arrangement is contractual and has no statutory framework governing its length or the employee's right to return to their original role.
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