Probation period guidance

    probation period guidance

    IN THIS ARTICLE

    However thorough you believe your recruitment processes to be, it probably isn’t perfect, and you could still end up with someone who doesn’t fit into the culture of your organisation, or who underperform. Probation periods give you the chance to assess new workers in situ for the stipulated trial period.

    Common reasons for employers finding new recruits disappointing, can include:

    • The employee fails to deliver either the skills or performance promised at interview
    • They have poor attendance or timekeeping
    • The new hire is a bad fit in terms of organisational culture or personality

    The role of the probation period

    A probation period is where newly recruited employees work for a specified period of time on a trial basis.

    A probation period gives employers the ability to manage the new relationship in a flexible way and gives them the opportunity to address problems before entering into a full contract.

    Probation periods broadly last between three and six months, but can be as long as a year, and usually exempt the probationary employee from certain contractual terms, such as pension schemes. Significantly, during the probation period, employees can be removed from their position without the standard notice period.

    Even in cases where there is no written contract, all employees must be given “reasonable” notice when their employment is terminated. Employees who have no right to a notice period include:

    • Those employed for less than a month
    • Crown servants
    • Employees dismissed due to gross misconduct

    If the employee does not fall into any of the above notice period exemptions, they have the right to notice of between one and twelve weeks. Although, the real aim of a probationary period should be to bring an effective employee on-board.

    Managing the probation period

    It should not be forgotten that even though a probationary period allows you to terminate an employee with greater ease, it is a brilliant tool to bring competent workers into the fold. By supporting new recruits, you can ensure they succeed by:

    • Setting out what is expected of the new hire during the probation period, and after it has expired. You should include any targets you expect them to meet during the probation period, and any skills they are required to attain or hone.
    • Informing them of the core values of your organisation
      Setting out the standards of punctuality and regular attendance
    • Developing the skills and knowledge they need to properly fulfil their new role, this can be done through training and support
    • Quickly address any performance problems as soon as they arise, and before the probationary period ends
      Informing the employee when the probationary review will take place

    The better you help your new hire to understand their role and duties within the first few weeks, the more you help them cope with the role’s demands and save time and money by reducing the need to recruit a replacement.

    Extending a probation period

    If you are nearing the end of the employee’s period of probation, and you are unsure as to whether they are the right person for the job, an alternative to outright dismissal, is to extend their probation period. There is no law limiting the amount of time, or length, of probation periods, although good practice dictates that extensions should not last longer than two months, and should only be used when absolutely necessary, for example, where trying to avoid termination.

    Can you dismiss someone during the probation period?

    Employees on probation are extremely unlikely to have worked for long enough to qualify for protection under employment legislation. Although it is important to note, they are still protected against harassment and dismissal for “protected reasons.” These are gender, ethnicity, age, disability, cultural background, and religion. Employees are also protected against wrongful dismissal, which can occur when an employer fails to follow their contractual dismissal processes, even if the employee is on probation.

    Dismissing an employee during the probation period should be seen as a last resort. Your decision should focus on factors surrounding poor performance, timekeeping, or failure to fit into the culture of your organisation. Perhaps there has been an incident amounting to gross misconduct, such as violence, theft, or fraud. Either way, a thorough dismissal process should be followed before making any firm decisions as to dismissal.

    Dismissal procedure

    • You should initially write to the employee and invite them to a probationary review meeting to tell them you are considering terminating their contract because of issues with their performance/timekeeping/culture fit, etc.
    • Let the employee know they have a right to be accompanied at the meeting by a colleague or trade union representative.
    • Provide the employee with evidence supporting your concerns
    • Give the employee an opportunity to respond to the issues you raise
    • Decide the outcome – either to extend the employees contract/probation period or terminate their employment
    • Give the employee a copy of the decision in writing – this should include their right to appeal the outcome and the deadline for doing so.
    • A paper trail of these steps will give you sufficient evidence you have followed a reasonable process, which should help you guard against a claim for wrongful dismissal. Ideally, you should aim to only end an employee’s contract where there has been poor behaviour, unacceptable progress, or gross misconduct. And in all circumstances, ensure fairness and consistency with all employees, whether they are on a probation period or not.

    Unfair dismissal while on probation

    To claim unfair dismissal, an employee must have worked for you continuously for a period of two years. However, there are certain types of unfair dismissal that do not require this qualifying period to be effective. This is because any staff member is entitled, from the first day of their employment, to all contractual rights, which essentially means you cannot dismiss an employee on discrimination grounds against any protected characteristics:

    • Age
    • Disability
    • Gender reassignment
    • Civil partnership and marriage
    • Pregnancy and maternity
    • Race
    • Religion and belief
    • Sex
    • Sexual orientation

    Automatically unfair reasons for dismissal include whistleblowing or asserting a statutory right.

    Employee rights while on probation

    During a probation period, employees do not have fewer statutory employment rights than those who are not on probation. As stated above, they have the right to protection against unfair dismissal and unlawful discrimination. Therefore, it is important to remember if you are thinking about dismissing an employee on probation, you will need to show with evidence that your reasons are fair and not discriminatory.

    In addition, if the employee on probation has a disability, you must make “reasonable adjustments” in line with their right not to be unlawfully discriminated against in relation to their disability.

    Probationary employees are entitled to the national minimum wage, time off in line with the Working Time Directive, family-related leave, statutory sick pay, and statutory notice. However, although their statutory rights are the same, employers sometimes choose to reserve entitlements such as enhanced sick pay, until after they have passed their probation period.

    Giving notice during the probation period

    The amount of notice depends on the type of notice you are required to give, these fall into two types: contractual notice and statutory notice.

    Contractual notice

    Contractual notice is contained within the employee’s contract and is the agreed notice period that either they or you must give to terminate the employment. Typical contractual notice periods are:

    • Less than one weeks’ notice is required for employees who have been working for you for less than one month
    • One week’s notice for staff who have been working for your business for between one and six months
    • One month is required for employees who have passed their probation period

    Statutory notice

    If a notice period is not included within the employee’s contract, then one of the following three statutory notice periods should be used:

    • One week – for employees whose length of service is between one month and two years
    • Two weeks – for those employees whose length of service is two years
    • More than two weeks – for every year your employee has worked over two years, you must give at least one week for each year. For example, seven years of service equates to seven weeks’ notice.

    Remember, you do not have to give any notice for employees on a probation period if they have been working for you for less than one month.

    If you do not want the employee to work for you during their notice period, there are two exceptions:

    • Payment in lieu of notice (PILON) – this allows you to end the employment before the employee serves their notice by paying them for the full notice period
    • Garden leave – the employee still serves their notice, but away from the business’s premises and without doing any work for the company. This happens most frequently when employees are leaving to join a competitor. You must ensure you pay them for the full notice period.

    Probation period reviews

    It is probably wise to arrange a series of informal review meetings during the probationary period at set intervals. This will obviously depend upon the duration of the trial period, but could be:

    • Week 4
    • Week 12 (particularly if this is the end of the probation period)
    • Week 26 (for those with longer probation periods or where they have been extended)

    Before the meeting, consider drafting notes to help discussions. By referring to full clear records and documentation of the employees’ performance throughout the probation period, you will be able to provide evidenced examples of areas of concern or success.
    You may also want to arrange a more formal review if the employee does not appear to be right for the role, or your organisation. This is particularly important if you are considering bringing their contract to an end.

    What to do when a probation period ends

    Although it is not a legal requirement, it is a good idea to confirm in writing whether the employee has successfully passed their probationary period. It will make them feel more settled in their new role and let them know they are on the right track. The general rule is that a probation period will automatically be considered complete when it expires without either being extended or the employee being dismissed.

    If you wish to terminate the employee’s contract because of unsatisfactory performance, it is best practice to wait until the probation period has ended. Without due process, the dismissal may be regarded as unfair or wrongful if it breaches contractual terms, but disciplinary procedures are not usually required during the probation period.

    The bottom line is that probationary periods should be used to turn a raw recruit into a skilled and capable employee. A recent survey found that around 18% of new employees failed their probation period. If you are confident you are doing all you can to train and support your new employees, it gives them agency to succeed or fail at their own hands.

    Probation period guidance

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    Legal disclaimer

    The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

    Author

    Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.

    Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.

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