Employee Probationary Periods

from Silk Helix
12 July 2020

What is a probationary period?

A probationary period is essentially a trial period at the beginning of employment. They usually last 3, 6 or 12 months - however, there is no specific legal definition of length.

The aim of the probationary period is to recognise the learning period for an employee in the early months of employment. As the employer you decide on the length of the probationary period. It should reflect the particular job role and the time necessary to learn the role and demonstrate ability in the role.

Recruitment is not a precise science. We have all encountered those people who can perform well at interviews but not when it comes to the reality of the day job. The probationary period is your opportunity to identify those who are not suitable for the role.

Does the probationary period have to be included in the contract?

With effect from April 2020, the statement of particulars of employment (which may be referred to as a contract) must include details of the probationary period.

The contract should give the right to dismiss during the probationary period or to extend the probationary period at the discretion of the employer.

How do I conduct a probationary review meeting?

Ideally you will have set goals at the beginning of the probationary period. These should be a picture of what successfully passing the probationary period looks like. Where do you expect the employee to be half way through and at the end of the period? A job description is a useful tool alongside an individual induction plan.

Don’t wait until the end of the probationary period to hold a probation meeting. Set regular review meetings throughout the period. These may be weekly for the first month or so and then reduce to monthly.

Regular review meetings enable you and the employee to raise and resolve issues quickly. There is a lot to learn during this period and it is easy for something to be missed. Most issues are genuine errors and can be resolved easily.

The meeting should include:

  • An exploration of how the individual feels they are getting on
  • A review of the expectations for the probationary period including praise for achievements so far
  • Discussion around any concerns with the employee, highlighting concerns identified, seeking the employee’s view and putting in place an action plan to resolve
  • Informing the employee if there is to be any extension of the probationary period

Take notes at the meeting and provide the employee with a written record of the discussion, including details of any actions discussed.

Can the probation period be extended?

Yes, in short, however consider whether this is the right action of the employee and the organisation.

If the employee has had a period of absence or other exceptional circumstance that has prevented an accurate assessment of their performance during the period then extending the probationary period to make a fair assessment is the right thing to do.

Where an employee is taking a little longer to get up to speed than you expected but it is looking like they will get there, extending the probationary period is a good way to help ensure you have made the right decision. It gives the employee a little more time and recognises that they are likely to reach the expected standard.

In circumstances where the employee has been given the relevant training and sufficient support but is just not reaching the desired standard then it may be better to dismiss at this stage rather than extend. It is important that the employee has been given a fair opportunity and isn’t being discriminated against, but equally the probationary period is the time to assess whether the employee is what you expected when you recruited them.

There are times when it comes to light that the employee doesn’t have the skills you thought they did, or perhaps their attitude doesn’t fit the requirements of the business. Assess whether these things can change, what the employee is saying about them and whether the business is in a position to provide the training required. If it is not looking likely the employee will improve then this is the time to end the probationary period and dismiss.

If you are extending the probationary period, this should be done prior to the end of the period. A meeting should be held to review and a letter written to confirm the extension period being imposed. The contract should have made it clear that extension was possible.

How to dismiss someone on probation?

An employee with less than 2 years service is not able to bring an ordinary unfair dismissal claim at an employment tribunal. This does make it easier for employers to dismiss someone on probation or indeed during their first 2 years service.

A dismissal at this stage is not entirely risk free as an employee could still bring a claim for automatic unfair dismissal - for example, if they are dismissed for a discriminatory reason or because they have asserted a statutory right. It is important to ensure that a dismissal is not for one of the protected reasons.

Your probationary review meetings notes will build a picture of the employee’s performance during the probationary period. It is this objective evidence that should be used to make a decision to dismiss.

An employee can bring a claim for wrongful dismissal if a contractual dismissal procedure is not followed so always refer back to the individual contractual terms.

If you are looking to dismiss an employee always seek advice specific to the situation. Call 01245 910 500 today or book a call back for a Free Advice Call.

How do we mark the end of probation?

The end of the probationary period is often marked individually with the employee rather than highlighted to the team. It is, afterall, a personal issue relating directly to their performance. Some companies do choose to have end of probation celebrations, however do consider that this could highlight (by the lack of or timing of the celebration) publicly if an individual’s probation has been extended.

A simple letter to the employee confirming they have passed their probationary period, thanking them and wishing them well for the future in the organisation will suffice.

An employee who has failed probation will require a meeting to discuss their dismissal and a letter confirming the dismissal.

Call Silk Helix now to request a free pass probation letter or fail probation letter.

While this guide covers the basics, every situation has its own complexities so you should always seek professional advice. Silk Helix can help so give us a call on 01245 910 500 to discuss, or we will call you:

Article last updated: 12 July 2020

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