New research into probationary periods has revealed that a fifth of new recruits fail their probationary period or have it extended, mostly because of issues of poor performance or absence. Bearing that in mind, we have put together our ‘Top Tips’ to remember in relation to probationary periods:
1. Consider the nature of the role being appointed. If you’re taking on a short-term hire, a probationary period may not be appropriate but for other roles, it can be a useful tool to allow you to assess a new employee and ensure they are up to the rigours of the role. A new senior appointment may not warrant a probationary period but it could be beneficial for an employee promoted into a senior role.
2. Think about how long you need to assess performance for the purposes of confirming continued employment. A three or six month period may be appropriate.
3. Employers often limit employees’ rights during a probationary period. For example, you might want to provide that employment can be terminated on one week’s written notice during a probationary period and that the employee is not entitled to full contractual benefits during the probation period and until they have successfully completed it.
4. Manage your probationary period effectively so that both you and your employee get the most out of it. The employee should be made aware from the outset of any specific goals or attainments that they are expected to achieve and the dates on which any progress meetings will take place.
5. Gather information on the employee’s performance, give feedback and address any issues of under-performance as you go along, keeping records of any meetings or discussions that take place. Don’t wait until just before the probationary period ends to discover that an employee is under-performing.
6. If an employee is not performing at the required level, consider if there is any additional training or support that could be provided and make a record of any such training or support offered.
7. Make a decision as to whether to confirm the employee in employment, to extend the probationary period or to terminate employment in advance of the end of the probationary period. There is no positive obligation to confirm to an employee in writing that they have successfully completed their probationary period but try to avoid the possibility of an employee successfully completing their probation “by default” by doing so.
8. If you want to extend the probationary period, check whether you have a contractual right to do so, failing which you will need to seek agreement from the employee to extend. In extending the probationary period, ensure the employee understands 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. Monitor the extended period in the same way as you did the first.
9. If an employee is absent for a significant part of their probationary period, for example, as result of sickness or maternity leave, consider extending their probationary period for a period equivalent to their absence, rather than treating their absence as a reason for deeming their performance unsatisfactory. By extending the probationary period, this gives the employee a fair chance to prove themselves and, further, gives you a proper chance to make an informed assessment of their performance. It also avoids the possibility of an allegation of discrimination if such an employee has not been given a full opportunity to prove themselves.
10. In the absence of any previous employment contributing to continuity, an employee may 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. Provided you are comfortable that the employee does not have any other claims which do not require a qualifying period of employment, for example, discrimination or whistleblowing, you may decide not to follow a formal procedure in dismissing the employee. You would still, however, need to pay them their full notice entitlement and any accrued but untaken holiday to avoid any claims arising from these payments.