Employee Probation Periods: An Update

• Published date: 14 October 2022
• Subject Matter: Employment and HR, Contract of Employment, Unfair/ Wrongful Dismissal, Employee Benefits & Compensation
• Law Firm: Appleby
• Author: Mr Jordan Knight

First Published in The Royal Gazette, Legally Speaking, October 2022

The Employment Act 2000 is the island's key piece of employment legislation, applicable to employees who work mainly in Bermuda under an employment contract.

The Act aims to promote fair treatment of employers and employees by providing minimum standards of employment, by establishing procedures and notice periods for the termination of employment, and by providing employees with protection against unfair dismissal.

In June 2021, a number of changes were made to the Act, the motivation for which was to ensure that Bermuda's legislation is in line with international best practices.

Prior to the amendments, there were no statutory limits on the length of an employee's probation period. Also, employers had an option to terminate employment during probation for any reason and without notice.

Effective June 1 last year, the key differences concerning probationary periods are:

• A new or promoted employee may be required to serve a probationary period of not more than six months, commencing on the date of their employment or promotion;
• An employee is entitled to receive from their employer a review of their performance, on or before the completion of the first half of their probationary period;
• An employer may, before the expiration of the initial probationary period, and only after conducting the performance review mentioned in the preceding point, extend the probation period for a maximum of three months;
• During the probationary period, including any extension employment may only be terminated without notice by the employer for a reason relating to the employee's performance review performance, conduct, or the operational requirements of the business ' although this does not apply to employees serving a period of probation after a promotion.

These changes limit an employer's ability to use probationary periods to dismiss staff, and provide an added layer of legal protection for...