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 or length.
If you have one you must refer to it in the statement of particulars (contract of employment), however, you do not have to have a probationary period. The only real advantage in them is in sending a message to the employee that they are on trial and to their manager to remind them to induct and monitor performance. This could be argued to be exact reasons not to have one, particularly the message it sends to your new joiner who may feel not fully part of the team until their probation is complete. Legally it doesn’t give any particular advantage.
Do we have to have a probationary period?
No. In fact, despite this article explaining how to use them we don’t recommend them in most cases. There is no legal requirement to have one.
The reason for having one is often stated as an opportunity for both the company and the employee to see if the right decision has been made and they are the right fit. In reality there isn’t an even power balance and probationary periods create something individuals have to pass. Take a look at our blog post on why we should stop using probationary periods for more on the problems of probationary periods.
That said, there are occasions when a probationary period may be useful, for example in care settings there is often a series of training that must be completed during the probationary period.
If you still want to use a probationary period, read on…
How to get the best out of a probationary period
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 for 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 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, whilst at the same time sending a clear message that further improvement is still expected.
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, there is no automatic right to dismiss simply because you call it a probationary period. Setting expectations and reviewing performance is important to ensure you’re clear on the reasons for dismissal.
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, speak to the employee and get their response to your concern. Ask yourself, 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 and hence why a probation period may not even be necessary.
It is important to be aware that a dismissal at this stage is not entirely risk free, 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 meeting 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. When discussing performance concerns, always stick to evidence and give examples. I’ll often hear an employer describe an employee as lazy, this is an opinion so we need to step back and ask “what examples of behaviour led to that opinion”, then focus on the examples.
An employee can bring a claim for wrongful dismissal if a contractual dismissal procedure is not followed, so always refer back to the individual’s contractual terms. You will be required to pay notice to avoid a wrongful dismissal claim, this being the very reason I recommend employers use short notice periods during probationary periods or the early months of service if not using a probationary period.
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.
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Article last updated: 21 September 2022
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