Probationary Periods

With Labour’s plans to introduce day one protection from unfair dismissal, the effective use of probationary periods is set to become crucial for managing short service employees. We, therefore, thought it would be useful to run through some of the common questions and misconceptions around probation periods.  

Are probations required by law?

Not at the moment (we may see this change under Labour), but they are always advised as best practice. This is because they set out a varied disciplinary procedure during the initial stages of employment.   

What is the purpose of a probation period?

Probations should be beneficial for both the employer and employee; they provide the opportunity for both parties to assess suitability and identify any areas for improvement/training.

Do I have to tell the employee they are on a probation?

Yes, if the role is subject to a probation period, it must be clearly detailed in the employment contract. 

How long should the probation last?

While there isn’t currently a prescribed amount of time, you must ensure that the duration is both reasonable and relative to the role. Typically, we would expect the probation to last 3 – 6 months depending on the role and the job holder. 

How can I get the most out of the probation period?

A good probation will involve regular check-ins and feedback with staff which is centred around clear communication and proactive management of issues. The Company’s expectations and the employee’s responsibilities should be clear from the offset.  This is your time as an employer to assess the individual’s performance, skills, abilities and attendance, so it should be used wisely to nip any concerns in the bud early.

How often should I check in with staff during the probation?

This will be different for every business, but you should be checking in regularly throughout the probation. It’s advisable to make a note of any discussions which take place during the probation, especially where issues are flagged up. This will give you a clear paper trail of evidence to refer to if you ultimately need to terminate employment.

Can I only implement probation periods for new recruits?

No, we would advise employers to make any new offer, particularly for promotions, subject to a probationary period; this way, you have a procedure to fall back on if the new role is unsuitable. Employers would, however, need to follow their formal disciplinary or capability policy if they are considering dismissing an employee with over 2 years’ service. 

Do I need to follow a formal process if I want to dismiss during a probation period?

Not necessarily but take advice before acting.  Spectra HR will be able to guide you with regards to the short cuts.

Do employees have the statutory right to be accompanied to a probation review?

Currently, probations are not a legal process which creates a bit of a grey area within the law when it comes to the statutory right of accompaniment. We do, however, advise employers wherever possible to extend the right to accompaniment to meetings where a decision about the employment will be made. 

Can I extend the probation?

Yes, if you are unsure about the employee’s suitability during or at end of their probation, you can extend it as per the terms outlined in their contract. Any extension should be confirmed to the employee in writing and clear instruction should be given about the areas for improvement. 

How to fail a probation?

If you have ongoing concerns or issues regarding the suitability of the employee, then you may decide to part ways during or at the end of the probationary period. To do so, it is best practice to invite them into a probation review meeting to discuss their performance and suitability and your subsequent reasons for terminating the employment. These conversations can sometimes become emotional or confrontational, so employers should approach sensitively and prepare clear discussion points to keep the conversation on the right track. Clear notes of this discussion should be made and signed off by everyone present at the end. 

Do I need to confirm the outcome of the probation in writing?

This will depend on the terms of your probation period which should be detailed in the employment contract. We do, however, strongly advise employers to make this a clear stipulation of their policy, as it prevents the probation from being passed by default after the stated duration. 

I don’t think the employee is the right fit for the business but am worried they may claim discrimination if I fail their probation.

In these situations, it will be important for the business to demonstrate that the dismissal is completely unrelated to any discriminative factor. This is where your regular (documented) check-ins with the employee and performance measures will serve you well, as you will be able to clearly demonstrate that you have worked with the individual throughout their probation and their failed probation is completely unrelated to their protected characteristic.

Given the risk associated with these situations, we would always recommend taking expert HR advice before instigating action against an individual with potential discrimination rights.

I think our new hire is underperforming due to a health condition, but they’ve not mentioned anything. How should I approach this situation?

Although, under the Equality Act 2010 employees are not legally obliged to declare health conditions, they do have a duty under Section 7 of the Health and Safety at Work Act to take reasonable care for their personal health and safety, as well as the health and safety of others who may be affected by their acts or omissions at work. On that basis, employers should encourage their staff to flag up any health concerns, so they can be appropriately addressed. 

Are employees entitled to notice if they fail their probation?

Check the wording in your contracts, there is no statutory entitlement to notice pay if an employee is dismissed within their first month of service.   Beyond one month, the usual notice rules apply. 

Do I have to confirm my decision to fail the probation in writing?

Although, the employee would not be legally entitled to written confirmation of dismissal, (unless they are pregnant) it is always best practice to confirm the Company’s decision and final pay details in writing afterwards.

Does an employee have the right to appeal a probation dismissal?

Many employers will not offer the right of appeal for probation dismissals however, you should check your policy to establish your Company’s position on this. 

Regardless of policy wording, it is always best practice to offer the right of appeal if dismissing an employee in their absence or if there’s been discrimination concerns around the dismissal.

For further advice on managing probation periods, setting objectives, the wording to include in your contracts of employment or how to manage ill health issues during a probation period please contact Spectra HR and don’t forget to look out for further updates on how Labour’s proposals will affect probation periods.  If you’re uncomfortable about holding the meeting yourself, then we can hold the meeting for you, either on site or over zoom.