- Dismissal following a probationary period
- What is a probationary period
- The rights of employees during their probationary period
- Extending an employee’s probationary period
- Why have a probationary period
- How long is the probationary period
- Employment law on probationary period
- 3 tips for handling dismissals on probationary periods
- Why the probationary period is important
- Can you extend probationary periods
- Key takeaways
It is important that the new employee understands what is expected of them during their probationary period from the beginning of their employment, therefore the manager should discuss the following with them within their first week:
- What the employee is expected to achieve in their job during the probationary period and thereafter.
- Details of the core values of the organisation and behaviours expected of the employee.
- The standards of regular attendance expected from the employee.
- Any development required to help the employee to do their job.
- How any problems with performance will be addressed.
- When the probationary period review meetings will take place.
The manager should also set out details of structured training, guidance, and supervisory support the new employee can expect to help them achieve the required standards. The manager should explain the mechanism for identifying and discussing any problem areas at the earliest opportunity, together with the provision of regular constructive two-way feedback.
During the probation a series of formal probationary review meetings should take place between the new employee and their manager to discuss:
- areas of strength
- areas where improvement is necessary
- any training required to enable the employee to improve
- whether or not the employee is achieving the expected standard
- Warn the employee that if this standard is not reached it will be necessary to terminate his/her employment.
The manager should always keep full, clear records and documentation of probationary period meetings throughout the probationary process.
If the employee is experiencing problems at any stage during his/her probation, the manager should discuss these with the employee and not wait until the next scheduled probationary period review meeting. The primary purpose is to bring about a sustained improvement in performance and to ensure that the employee has had sufficient opportunities to achieve this.
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Dismissal following a probationary period
If the expected performance standard is not being achieved by the employee, even after significant opportunities have been given alongside a development plan, the company may decide to consider the possibility of terminating the contract due to unsatisfactory progress/behaviour during the probationary period.
Most policies or contracts of employment state the full disciplinary procedure is not usually considered appropriate for employees working within probation, and whilst an employee cannot claim unfair dismissal in the first year of service. If you dismiss someone without going through a fair dismissal process an employee can claim wrongful dismissal, for which there is no length of service requirement.
As such the following procedure should be followed:
- Write to the employee to invite them into a probationary review meeting, outlining the issues and advising that termination is being considered.
- Give the employee the right to be accompanied by a colleague or an accredited trade union representative.
- At the meeting give the employee the opportunity to respond to the issues put forward.
- Make a decision on the outcome, i.e. terminate the contract or extend the probationary period (assuming the contract of employment allows for this).
- Notify the employee of the outcome of the probationary period review in writing.
- If the decision was to terminate the contract, offer the employee the right to appeal within five working days.
Probationary period reviews should be handled consistently by all managers, and therefore it is recommended that all managers should receive training on how to manage probation for new employees. Furthermore, the probationary period should be stated in the employment terms and conditions.
What is a Probationary period?
A probationary period is a clause for new employees joining a company, helping both the employee and employer asset if they fit the role correctly.
During probation, employees can be excused from some contractual rights, such as company or employee benefits. Some workplaces require employees to pass their probation before agreeing to hybrid work arrangements.
Recruitment campaigns can be highly time-consuming and costly for businesses, and utilising probationary periods to benefit the business is critical.
There are 3 key aims for probationary periods to establish;
- If the new employee is a good fit for the role including their performance, skills, and overall conduct in the workplace
- How well the new employee works with team members
- How the new employee fits within the company
Probationary period reviews give companies a clear framework for assessing the capabilities, reliability, and, suitability of the new employee, and there is substantial evidence to suggest that a probationary period will increase the probability that new employees will succeed in their new roles.
The rights of employees during their probationary period (employment law during the probationary period)
Whilst new employees do not have rights against company-specific benefits, some laws are day-one rights and must be followed according to employment law, including;
- At least the national minimum wage or living wage
- Itemised pay slips
- Paid holiday entitlement – beginning from day one
- Maximum working hours and minimum breaks
- Maternity leave
- Time off for ante-natal appointments
Extending an employee’s probationary period
Businesses have the right to extend the probationary period, as long as they provide valid and fair reasons for doing so. If you are considering extending a probation, speak with our HR consultants who will be able to assist you with the correct process for extending the probation and the necessary communication needed between you and the employee.
Why have a Probationary Period?
The purpose of a probationary period is to allow a specific time period for the employee and employer to assess the suitability of the role after having first-hand experience. On the one hand, it allows the employer to assess objectively whether the new employee is suitable for the job, considering their capability, skills, performance, attendance, and general conduct.
On the other hand, it allows the new employee to see whether they like their new job and surroundings, which can’t be fully established during the recruitment process.
How long is the probationary period?
There is no employment law determining how long the probationary period is. However, there is an expectation that the employer will be reasonable when deciding how long the probationary period is. A probationary period can last anything from three months to a year, but typically it is six months. The time period can depend on the seniority of the role or contract length.
The employer can also reserve the right to extend the probation should the need arise by stipulating it in the contract of employment, however, this should not be the norm and should only be agreed upon if there are special factors that justify it.
No matter how long the probationary period that the company decides it should be, it must be communicated to the employee at the outset of their employment.
Employment law on probationary periods
Employment laws regarding probation periods vary, but it is crucial to ensure that employees’ rights are not violated during this period. Dealing with minor issues informally at the beginning can be helpful, as employees may not be aware of them. Minor issues may include lateness or failure to meet performance expectations. On the other hand, major issues such as CV fraud (falsifying information on a CV) or gross misconduct should be addressed formally, following the guidelines outlined in the employee handbooks. This typically involves initiating the disciplinary process and making the employee aware of the possibility of dismissal.
During probation, employees still enjoy certain statutory employment rights, such as protection against discrimination or unfair dismissal. Dismissing an employee for reasons such as taking leave for pregnancy or family emergencies would be considered automatically unfair. Previously, employees were not entitled to request flexible working until they had completed a specific number of weeks in the job. However, the UK Government is planning to introduce a change in 2023, granting employees the right to request flexible working from day one of their employment.
If you are uncertain about the employment laws on probation periods, seeking advice from external HR consultants can be beneficial. Feel free to contact us today for more information on our outsourced HR services in Glasgow and Northern Ireland.
3 tips for handling dismissals on probationary periods
Handling dismissals during probationary periods can be a challenging task for employers, creating difficult conversations in the workplace. Difficult conversations may have a negative impact on both parties, especially when handled incorrectly, the conversations must be dealt with legally and ethically. Navigating dismissals during probation should be done in a professional and compliant manner, tips for managing this include;
Clear and open communication
Clear communication forms the foundation for a successful probation period. From the outset, employees should be aware of the expectations, the performance standards they need to meet, and the consequences of not meeting performance expectations – which could include dismissal.
Hold frequent reviews and provide feedback throughout the probationary period for open communication. If the employee is not meeting the required standards, communicating where improvements are required is essential and dismissal should never come as a shock to an employee.
Fair and Transparent Process
Even during probationary periods, it’s vital to follow a fair and transparent process when considering dismissal. Setting a precedent is vital; having consistent processes and standards across the board for all employees.
Before reaching the decision of dismissal, the company should have evidence of how and when the company has provided opportunities for the employee to improve their performance i.e. keeping records of meetings and training provided. The dismissal mustn’t discriminate against any protected characteristic i.e. race, age, gender or disability.
Consult with HR Consultants
Dismissals, even during probation, can lead to legal implications if not handled correctly. Therefore, it’s essential to consult with HR consultants to ensure you are in line with UK employment laws and your company policies, which should be outlined in employee handbooks.
Ensure you understand the terms and conditions of the contract of employment and the business’ legal obligations towards the employee. If a business handles a dismissal badly, it can impact their reputation, as well as lead to tribunal claims for unfair dismissals which may lead to financial penalties.
The fundamentals of handling dismissals during probation fall to clear communication and employment law compliance. Any decisions made should be fair and transparent. Managing probationary periods through best practices reduces any negative impacts, helping to create a supportive working environment and positive company culture.
Why the probationary period is important.
A probationary period provides a safety net during the initial stages of employment. Its importance expands to both employers and employees, playing a key role throughout an employee’s probation it provides the opportunity to build a working relationship in a positive manner.
Three key reasons highlighting the importance of the probationary period;
Reviewing Employee Suitability
A probationary period allows an employer to assess an employee’s suitability for the job and company before confirming permanent employment. The employer should evaluate the employee’s skills, work ethic, compatibility with the company culture, and ability to fulfill the job’s expectations. Employers should be asking themselves does their CV live up to their actual skills?
For employees, it’s a chance to understand the demands of the job, get acquainted with the company’s culture, and how the job role fits in with their career progression goals. Essentially, the probationary period serves as a trial run for both parties to determine if the employment relationship is a good fit.
Opportunity for Training and Feedback
The probation also provides a structured framework for training new employees and providing them with constructive feedback. It allows employers to identify any gaps in the employee’s skills or knowledge early on and address these through additional training or mentorship.
Frequent feedback throughout probation helps employees understand expectations and the improvements required. Open communication creates a working environment promoting growth and learning boosting job satisfaction and productivity.
From a legal and financial perspective, probation can help mitigate risks. If an employee is not a good fit or fails to meet performance expectations, the probationary period allows the employer to terminate the employment relationship more easily, employers must follow any terms within the contract of employment and employment laws. Make sure this is not discriminatory against protected characteristics.
A well-managed probationary period can be a win-win situation for both employers and employees. It encourages open communication, promotes effective training, enables a thorough evaluation process, and reduces risk for both parties.
By understanding the benefits of probationary periods, companies can enhance their talent management strategies and contribute to a positive and productive workplace culture.
Can you extend probationary periods?
In the simplest terms, yes businesses can expend probationary periods, but this may have complexities and not always straightforward. There are various reasons required to extend and processes to follow.
Contractual Conditions and UK Employment Laws
Firstly, it is crucial to note that the ability to extend a probationary period depends on the terms specified in the contracts of employment and UK employment laws. The contract must outline terms allowing for an extension, and any extension must also comply with UK employment laws.
We recommend a 6-month probationary period, as we feel this provides adequate time to access and review employee performance. Furthermore, in Northern Ireland after 12 months of service, the employee is able to claim unfair dismissal, employers should be wary of this when setting probationary periods.
Reasons for Extending Probationary Periods
There can be various reasons for considering an extension to a probationary period. Here are a few common scenarios:
Performance issues: If the employee shows potential but hasn’t fully met the job expectations during the initial probationary period, extending the probation is an option. The extension may motivate the employee to improve their performance to meet expectations and be suitable for the role.
Insufficient Assessment Time: In cases where the employee has been absent for a significant portion of the probationary period due to sickness, leave, or any other reason, there might not have been enough time to adequately assess their performance. An extension can provide the necessary time for a fair assessment.
Changed Job Responsibilities: Considerations are needed if the employee’s role has changed significantly or their responsibilities have increased during the probationary period, the employee may need more time to adjust to the role in order to meet expectations and to give employers the full picture.
Remember, the overall goal of both probationary is for parties to review and access if the employment relationship is suitable. If more time is needed to make that assessment, an extension can be a fair and practical solution.
Clear Communication is Crucial: If an extension to the probationary period is being considered, clear and timely communication with the employee is essential. Discuss the reasons for the extension, outline the areas where improvement is needed, and provide them with the support and training to achieve their goals during the extension period.
Extending a probationary period can be beneficial for the full evaluation of new employee capabilities. However, it should be executed in a legally compliant manner, with transparent communication and the right support mechanisms in place to foster a positive employment relationship. Recording of all training and communication are necessary to keep the company compliant and highlight evidence of them trying to improve and train the employee.
How our HR consultants can help your business with Probationary reviews
Our HR consultants can assist your business through probation and the dismissal process if an employee is not meeting the expected performance. By utilising our outsourced HR service, you will receive unlimited calls and email support through the full process, allowing you hours of communication and HR support.
Purpose of probationary periods: Allows both employer and employee to assess suitability for the role and company, it is usually deemed as a trial period whilst evaluating compatibility and performance.
Duration: Typically lasts three to six months but can extend up to a year, the duration may vary depending on the seniority or contract length.
Extension of probationary periods: employers do have the right to extend an employee’s probationary period, only if they have valid reasons for doing so. When extending, employers must have clear communication and legal compliance.
Employment law: Employees have rights during probation, including protection against discrimination and unfair dismissal. For example, UK employment law is to introduce the right to request flexible working from day one in the coming years.
Handling dismissals: Employers must follow a fair process in accordance with UK employment laws, handling them ethically and legally.
Importance of probationary periods: Providing a safety net for all parties involved, giving time for training, feedback and risk mitigation. Whilst employees do have rights during the probationary period there is still less protections for them.
Reasons for extension: Employers must have valid reasons for extensions these include; performance issues insufficient assessment time, or changed job responsibilities. Extensions should be communicated giving reasons to why and throughout the extension support given to the employee.
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