This is a guide for employers who wish to ensure they maximise their use of the probationary period for new employees and who wish to avoid some of the possible claims arising from termination of a probationary period.
Whilst there is no legal requirement to use them, probationary periods are commonly used by employers when taking on new staff into job roles for the first time. This is usually when the person is entirely new to the organisation and starting work under a new contract of employment. Typically, probation periods last either 3 or 6 months depending on the nature of the job. Longer probationary periods may be used where the job holder cannot reasonably be assessed in a short time due to the seniority of their role or the time needed for the job holder to get up to speed. However, excessively long probation periods which are not justifiable should be avoided.
The purpose of a probationary period should be to assess the suitability of the job holder in terms of job performance, capability, skills and general conduct against the standards required in the job role. These standards are usually written down in a job description and/or person specification. Other documents may also contain job standards such as the job advertisement and even quality documentation. Some requirements may be specifically referred to in the job holder’s statement of terms and conditions, e.g., times of attendance at work and others may be implied terms such as the requirement to be loyal to one’s employer. See guide to contracts for more details on terms of contracts.
When offering a new role, employers should make it clear in the job offer and contract that a probationary period applies, that the job holder will be assessed and that their employment may be terminated if they do not reach the required standards of performance.
It is important that the job holder understands how they are expected to perform and the standards which will be applied when assessing whether they are successful. Ideally, all new starters should know who will be monitoring their performance and who they should go to if they have problems in reaching the appropriate level of performance. It is common practice for employers to give new job holders an induction at the start of employment which can be both general and tailored specifically to the job itself. On top of this some initial training and support is usually scheduled in the first weeks of employment.
As the job holder progresses through their first few weeks or months, they should receive regular informal reviews with their line manager to establish if they are meeting the job requirements and, if not, what support or training can be put in place to help them succeed in the role. Line managers should keep a note of these discussions as these can be important at a later stage if the job holder is not successful. Giving regular feedback to the job holder can serve to encourage them in their role, but also is an opportunity to flag up to them any potential areas of concern so that the outcome of the probationary period is not a surprise to them.
Where appropriate, an action plan can be agreed with the employee to monitor their progress throughout the probationary period.
The line manager should aim to be supportive during this period, should mention positive achievements but not be reticent about giving constructive criticism and explaining the consequences of underperforming. However, it is important to be realistic as few new job holders will perform perfectly from the start and some mistakes may be inevitable. How serious the shortfalls are is a matter of judgment for the line manager.
Towards the end of the probationary period, the employer should invite the job holder, in writing, to a formal probationary review hearing to assess their progress in the role and decide whether their employment will be confirmed or not. See letter inviting employee to probationary review hearing. The letter should outline any areas of concern, attach any relevant documentation, e.g., timekeeping records, advise the employee of their right to be accompanied and explain the possible outcomes of the hearing. Possible outcomes may include confirming the job holder’s appointment, extending the probationary period or terminating the job holder’s employment if their progress is unsatisfactory. See letters confirming, extending or terminating the probationary period.
The format of the meeting should be in accordance with any formal employment meeting (as specified in the ACAS Code of Practice) in that an agenda is followed. At the meeting and before any decision is made, the employee should be given the opportunity to comment on any concerns raised, be given the right to be accompanied and be given the right of appeal if their employment is terminated.
Very often, those on probationary periods find that they continue in employment beyond the end of their probationary period without any formal notification that they have completed the probationary period. In these circumstances, it can be more difficult for the employer to rely on failure within a probationary period to end the employee’s employment. Whilst those with less than 2 year’s service (or less than one year’s service if employed before 6 April 2012) cannot usually bring a claim of unfair dismissal, unless their dismissal is for an automatically unfair reason, e.g. whistle-blowing, assertion of a statutory right, there are other claims an employee can use to bring complaints to tribunal such as unlawful discrimination. By not having a formal review process and possibly ambushing the employee with the revelation that they are not up to the job, the employer runs the risk of the employee interpreting the termination of their employment as a smokescreen for other issues.
Furthermore, by allowing the probationary period to lapse, the employee may become entitled to certain contractual benefits which were only applicable when the probationary period had ended, such as entitlement to company sick pay or greater notice and procedures that were stated to be excluded during the probationary period, e.g., disciplinary procedure, will become applicable.
One way to ensure that the employer does not fall foul of “lapsed” probationary periods is to ensure the contractual clause relating to probation (usually in an offer letter or statement of terms and conditions) is carefully worded and clearly states that the probation will not be deemed to have been completed unless the employee’s post is confirmed in writing on or after the end of the probationary period. However, even where such wording is used, the employer would not be able to rely on this indefinitely.
If an employee is not performing satisfactorily, their probationary period may be extended to allow a further review to take place as an alternative to terminating the contract. Such an extension should be for a fixed period and be confirmed in writing. Extensions 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 the employee or manager. It should be explained to the employee why the probationary period has been extended, what they need to do to achieve the standards required and what support, if any, is offered by the employer such as additional coaching or training.
Extensions to the probationary period should nevertheless be used with some caution and should not be used to give the employee one last chance or to put off making a decision about termination. Rather, extensions should be used where the employee is “nearly there” in terms of job performance and there is some confidence that they will succeed if given additional time and support. Allowing the employee to think they are succeeding when they are not and then terminating at a later date can again give rise to suspicions that their employment has been ended on unlawful grounds rather than for specific failures against the job description.
There are many things that can occur during a probationary period which may give the employer cause for concern, but should also be treated with some caution. The following are some examples of issues which can become problematic:
Whilst an employer may feel these issues might cause problems further down the line, the employer should not act hastily in dismissing an employee if any of these situations arise. For example, to dismiss employees on certain grounds can be deemed automatically unfair and no service requirement is needed for the employee to bring a claim. Claims without a service qualification include the following:
Where existing employees change jobs within the same organisation, either because of re-deployment, promotions, transfers or changes in job role/function through re-organisation programmes, employers often insert a probationary clause into the new contract. However, the employee cannot be regarded as a “new” employee in quite the same way as someone starting in the organisation for the first time. Whilst all new job holders should receive training and support to assist them in their new role and have feedback on their performance, if an existing employee fails to meet the standards required in the new role, the employer should follow a fair procedure for dealing with poor performance. It will not be possible, if the employee has accrued sufficient service, to just “fail” the employee at the end of the probationary period by terminating their employment.
If an existing employee is not achieving the required standard within the probationary period, consideration should be given to extending the probationary period as well as ensuring that reasonable measures are put in place to support the employee. Regular monitoring throughout the probationary period is essential and a record should be kept of discussions with the employee. If the employee still fails to meet the required standard, a formal procedure prior to dismissal must be followed.
Ultimately, if the employee cannot meet the standard required, the employer is not legally obliged to offer them their old job back, but a reasonable attempt should be made to identify any other vacant positions which may be available.
Employers should note that if they allow the probationary period to lapse without any indication to the employee that they are succeeding or not, it will be a lot more difficult to rely on poor performance in this period as a reason for terminating employment and the only route to follow will be a series of meetings and warnings in line with the ACAS Code of Practice, which will be likely to extend the probationary period time frame.
Failure to follow a proper process is likely to lead to an unfair dismissal in these circumstances. Even if the employee has not accrued sufficient service to qualify for bringing a claim of unfair dismissal, they may claim for a breach of contract if the employer fails to follow its own contractual procedures.
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