The purpose of a probationary period is to provide a suitable amount of time in which the employer can assess the employee. In all but the most senior appointments or very short-term contracts, a probationary period is advisable for any employee.
The length of probation is likely to depend on the nature of the job and how long it will take the employer to assess performance for the purposes of confirming continued employment.
It is not unusual to see probationary periods of three or six months and for the employee’s contract to provide that, during the probationary period, their employment can be terminated on shorter notice (subject to minimum statutory notice under section 86(1)(a) of ERA 1996).
What should happen?
The employee is aware from the outset of the approach that the employer intends to follow and, if applicable to their particular probation, any specific goals or attainments that they are expected to achieve and the dates on which any progress meetings will take place.
Information on the employee’s performance can be gathered and considered by the employer in good time. It is important not to wait until the end of the probationary period to discover that an employee is under-performing.
Feedback is given to the employee on their progress and whether or not they are meeting the employer’s expectations.
An employee may not appreciate that informal feedback is intended to let them know that they are not meeting expectations or telling them how they need to improve if they are to do so. To avoid uncertainty or confusion an employer may prefer to fix meetings at stages throughout the employee’s probationary period.
A record should be kept of feedback that is given to the employee (meetings can be minuted or a record of a discussion can be set down in a memorandum), a copy kept on the employee’s file and a copy given to the employee.
The outcome, including any extension of the probationary period (where applicable, see below) and any steps required of the employee going forward, can be confirmed in writing. This may be particularly useful when key points need to be made clear to the employee.
The employer decides whether to confirm the employee in employment and communicate this decision to the employee (giving notice to terminate employment if necessary) before the end of the probationary period.
By putting itself under a positive obligation to do this, the employer reduces the chance of an employee successfully completing their probation “by default” simply because the end of the probationary period comes and goes without being noticed or addressed.
Extending a probationary period
If an employee is failing to meet the employer’s expectations, guidance should be given on the standards of performance and/or behaviour the employee needs to achieve.
Where considered necessary, and only if the employer has a contractual right to extend the probationary period, before the original probationary period expires the employer can notify the employee that their probation is being extended. In doing so, the employer should advise the employee of the following:
- The reasons why the employer is unable to confirm the employee in post. The employee needs to be able to understand what aspects of their performance are letting them down and, as a result, what they will need to do prove themselves in the further period of probation.
- Any particular improvement that is expected of the employee and any identifiable goals they need to achieve.
- The date on which the employee’s probation will now end. If the employer wishes to fix progress meetings during this additional period, the employee should be given the dates on which they will take place. It will be important for the process of feedback to be maintained through the additional probationary period.
The effect of absence during a probationary period
In some cases an employee may be absent for a significant part of their probationary period. This may be the result of sickness, disability or maternity leave.
In such cases the employer may need to resist the temptation to regard the employee as unsatisfactory given their absence and instead consider exercising any contractual right to extend the employee’s probationary period or inviting the employee to agree to an extension for a period equivalent to their absence.
If the employer fails to exercise a contractual right to extend probation, or fails to offer such an extension to the employee, the employee may bring a discrimination claim if this puts them to detriment due to a protected characteristic (e.g. pregnancy).
Unsuccessful probation: terminating employment
In most cases, in the absence of any previous employment contributing to continuity, an employee will have insufficient continuous service by the time notice expires following the end of a probationary period to enable them to bring an ordinary unfair dismissal claim.
If the employer is comfortable that the employee will not bring any other claims against it, for example, claims for automatic unfair dismissal or discrimination or any other claims which do not have a continuous employment requirement, the employer may decide not to follow the Acas Code of Practice on Disciplinary and Grievance Procedures in dismissing the employee with notice at the end of their probationary period.
It is often advisable to follow some degree of procedure prior to dismissing an employee in their probationary period even where there is no contractual requirement to do so and the employer is confident that the reason for dismissal is unrelated to any of the claims that can be pursued without qualifying service.
Doing this will ensure that there is a paper trail setting out the employer’s motivation for terminating employment, and this may assist the employer in demonstrating the real reason for dismissal if the matter were challenged.
Induction of a new employee
When a new employee starts work an employer is likely to have a procedure that it follows to ensure that it has all the information and documents that it needed to receive and that all new staff can settle quickly into their roles and the employer’s workplace.
The following are likely to be dealt with as part of an employee’s induction:
Confirmation that the employer has copies of necessary paperwork on its file such as a copy of the employee’s contract signed by the employee and signed receipt for a copy of its staff handbook or any policies and procedures that are provided by the employer.
An employer is also likely to want:
the employee’s P60 for payroll purposes,
confirmation of the employee’s address and emergency contact details
any other “need-to-know” information, such as details of any allergies or illnesses so that the employer’s occupational health and appropriate first aiders can be advised if necessary.
Health and safety training, including location of fire exits and alarms.
Job specific training which may include processes, procedures and health and safety issues and allocation of protective clothing and equipment.
An explanation of the probationary procedure (and set performance objectives and dates for progress meetings, where applicable).
Ensure the employee is either given or signed up for the employer’s next session of equal opportunities training.
Records should be kept of the employee’s attendance at training courses.