The primary purpose of using probationary periods is to provide a clear framework for assessing the suitability of new employees in terms of performance, behaviour and attendance against the standards you have set for the role.
This means when you use a probationary period you should clearly set out your standards and expectations from the very start so the new employee fully understands what you expect from them in terms of performance, behaviour and attendance and the consequences of failing to achieve those standards.
Contracts of Employment
If you haven’t used probationary periods before you will need to amend your contract of employment to state that the initial period of employment will be a probationary period, that the employee will be assessed during that period and their employment may be terminated if they do not reach the required standards.
I also recommend you include the right to extend the probationary period for a further limited period. You can only extend the period once by a timeframe of no longer than the original period. This means if you are unsure about an employee, or have been unable to properly assess their performance, you can give them a bit more time.
Specify a Time Limit
There is no legal guidance on how long a probationary period should be. For managers, technical and professionally qualified staff a probationary period of between 3 and 6 months is commonly acceptable whilst for more junior employees a period of between 1 and 3 months is more usual.
At the Start of the Probationary Period
It is important that the employee understands your expectations in relation to their performance and how you will assess whether they are meeting your expectations. This process of understanding starts with the induction process and is supported by the on the job training you will provide during the first few weeks of employment.
As the new employee progresses through their probationary period you should ensure feedback about any areas of concern is given regularly – the outcome of a probationary period should not come as a surprise to your employee!
I’m not suggesting a huge amount of your time here, during a probationary period of 6 months’ you could have interim reviews at the end of the first and third months and then a final review just before the employee reaches the 6-month point.
During the review meetings you should:
- Discuss work performance to date
- Provide constructive feedback highlighting both achievements and areas of weakness, using suitable examples
- Review the expectations that were set when the employee started
- Discuss what support or training can be put in place to help the employee succeed in the role
- Set clear targets for the next review period
Make notes of these meetings, as you would any business meeting, including any action agreed to resolve concerns. The notes will be important later on if the employee doesn’t meet the minimum requirements, you have set them. Give a copy of the notes to the employee so there are no misunderstandings.
Final Review Meeting
The final review meeting should be more formal than the interim meetings. You will need to invite the employee, in writing, to the meeting and outline, in the letter, any areas of concern and attach any relevant documentation such as attendance records. The letter should also confirm the employees’ right to be accompanied and explain the possible outcomes of the hearing.
Before any decision is made, make sure the employee has been given:
- All of the information with regard to their performance
- The opportunity to comment on any concerns you have raised
- The right to be accompanied
- The right of appeal if their employment is terminated.
Ensure the final meeting takes place before the end of the probation period, otherwise the employee will have passed by default. If you are unable to arrange the meeting within the probationary period, say for holidays, workload or a period of sickness, then extend the probationary period until such time as you are able to hold the meeting.
Extending Probationary Periods
There may be occasions, particularly in the shorter probationary periods, when an employee is not performing satisfactorily but is pretty close and you have some confidence that they will succeed with additional time and support. In these situations, it is possible to extend the probationary period to allow a further review to take place as an alternative to terminating the contract.
An extension may also be used if the probationary period has been interrupted for some reason and no proper review of progress has been possible, for example, if there has been a period of absence by either the employee or the line manager.
Extensions should be for a fixed period of time, no longer than the original probationary period, and be confirmed in writing. The letter should also clearly explain:
- the reasons for the extension
- what the employee needs to do to achieve the standards required
- what support, if any, is offered such as additional coaching or training
Termination of Employment
The secondary purpose of a probationary period is to provide for early termination of employment if such difficulties are not resolved during this period.
If you don’t have a probationary period written in to your contract of employment then employees who do not meet the standard required for their role are treated in the same way as any other employee. This will involve a series of meetings through your disciplinary or capability procedure and the normal notice period will apply.
The employee can be dismissed when it becomes clear to you that they are not going to reach the minimum standards of behaviour you expect, this may be at the end of the probationary period or could be quite early on in the probationary period.
“You have not passed your probationary period” is a clear, easy to understand concept for the employee and anyone advising them. It is, on the face of it, a non-discriminatory reason for dismissal.
Claims by the Employee to the Employment Tribunal
Often companies use dismissal at the end of a probationary period as a smoke screen to dismiss an employee for an underlying reason. Here are some common issues:
- Absences early on in employment relating to a disability
- Announcement of a pregnancy
- Unexpected requests for statutory family leave
- Raising a grievance early on
- Unexpected trade union allegiance and activity
None of these are appropriate reasons for dismissal and could lead to a claim for ‘automatic unfair dismissal’ as well as the potential for discrimination claims. There is no length of service requirement for automatic unfair dismissal or discrimination claims.
If you dismiss someone without going through a fair dismissal process an employee can claim wrongful dismissal, for which there is no length of service requirement. Wrongful dismissal occurs when the dismissal breaches the employer’s contractual or statutory obligations, for example by failing to follow a contractual disciplinary procedure or failure to give contractual notice.
Applying Probation when an Employee Changes Jobs
It is not uncommon to see probationary period clauses in contracts given to employees who change roles with the same employer. This gives the employee the same framework for providing feedback and agreeing relevant training and support that a totally new employee would receive. The employee will go through the interim review process in the same way as a new employee, however, if they aren’t reaching the agreed minimum standards for the new role then the capability procedure should be used rather than extending the probationary period or terminating the employment contract.