“We don’t bother with probation periods – what could go wrong?” (Spoiler: A lot!)

So, what is a probationary period?

It is a period at the start of an employment relationship during which the employee is assessed by their employer, and following which, they are notified as to whether their appointment will be made permanent.

There is no legislation which sets out the requirement to have a probation period or any details about how a probation period should work, so it is extremely important that if as a business, you are planning to utilise a probation period to assess a new hire, this is included in the written statement of particulars of employment and managed effectively.

Why is this important now?

The new Labour Government have made it clear that the law will be changing on employment law protection, with the introduction of a “day one right” to bring a claim for unfair dismissal. There has been commentary however, which suggests that employers will be able to operate probation periods to assess new recruits. Whilst we do not know the details surrounding how this will work in practice, we do anticipate that there will be a requirement for a fair process to be followed when reviewing an individual’s performance during their probation period.

Many employers have previously been quite relaxed around the use of probation periods, with the knowledge that they could simply terminate with the notice the employment of an employee who did not meet the required standards. Provided this termination took place well ahead of the employee accruing two years’ continuous service, they wouldn’t have the right to bring a claim for unfair dismissal. With the proposed introduction of the “day one right” to claim unfair dismissal by the new Government, the use of probation periods will be a really important management tool.

How should probation periods be managed?

It will be essential to have in place systems to ensure that probation periods are managed effectively, so that employees who may be underperforming do not inadvertently pass their probation period by default. Employers should therefore:

·         Ensure the contractual documentation issued to employees contains the particulars of any probation period, including any conditions and its duration.

·         Consider how long you would require the probation period to be. Probation periods normally last between 3 – 6 months, with the option to extend this period if necessary. Think carefully about this for each new hire, whilst it may be appropriate to have a 3 month probation period for one job role, a longer probation period may be needed for others. Ensure that there is clear and transparent reasoning for why the length of probation period has been determined for each new recruit.

·         Make sure the employee is aware from the outset the approach that will be taken to assess their progress during the probation period. What goals are they expected to achieve and when will this be assessed? Have they been given a clear job description?

·         Ideally the employee’s performance should be assessed throughout the probation period. If there is an issue identified, then this should be raised with the employee at that time. It is not appropriate to leave it to the end of the probation period to address any concerns or issues.

·         The contractual particulars should include the right to extend an individual’s probation. This may be due to underperformance, but may also be due to a significant period of sickness absence for example. Where there has been absence,  the employee’s probation should be extended to provide them a fair opportunity to prove themselves and this should be clearly communicated to the individual.

·         Ensure that when a decision is being made about the employee’s continuing employment, a meeting is held prior to the end of the probation period. This will be absolutely essential if termination of employment could be an outcome of the meeting, as any termination outside of the probation period may result in the employee having the opportunity to bring an employment tribunal claim when the “day one” unfair dismissal rights become enforceable. It will also be of paramount importance in any situation where there is a termination, to ensure that a fair process is followed to avoid any suggestion that the termination was for any discriminatory reason, for example.

What should businesses do now?

It is important to put processes in place now, to ensure compliance with the forthcoming changes proposed by the new Government. Having systems in place where probation periods are managed effectively will not only help in dealing with those employees who may not meet expectations, but can also act as a really positive experience for those who have been successful new hires.