How to manage probationary periodsPosted in : HR Updates on 2 August 2016
No matter how rigorous the interview process, employers have been known to make the wrong decision. In this article Neil McLeese will explore the reason for having a probationary period, the points to consider during probation and what steps to take if you need to terminate an employee’s employment during probation.
Probation performance reviews give them a clear framework for assessing the capabilities, reliability and suitability of the new employee and there is substantial evidence to suggest that probationary periods increase the probability that new employees will succeed in their new roles.
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 gives the employer opportunity to assess objectively whether the new employee is suitable for the job taking into account their capability, skills, performance, attendance and general conduct. On the other hand, it gives the new employee the opportunity to see whether they like their new job and surroundings.
How Long Should the Probationary Period be?
There is no law determining the length of a probationary period. However, there is an expectation that the employer will be reasonable. A probationary period can last anything from three months to a year, but typically it is six months. The employer can also reserve the right to extend the probationary period should the need arise by stipulating it in the contract of employment, however, this should not be the norm and should only be agreed if there are special factors that justify it.
No matter how long the Company decides the probationary period should be, it must be clearly communicated to the employee at the outset of their employment.
The Probationary Period
It is important that the new employee understands what is expected of them 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 probationary period a series of formal 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 meetings throughout the probationary process.
If the employee is experiencing problems at any stage during his/her probationary period the manager should discuss these with the employee and not wait until the next scheduled 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.
Termination of Contract
If the expected standard is not being achieved by the employee, even after significant opportunity has been given along with a development required, 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 the probationary period, 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, i.e. if the individual has a protected characteristic (for example is disabled) then there is a potential risk that they could make a claim in regards to discrimination.
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 in writing.
- If the decision was to terminate the contract, offer the employee the right to appeal within five working days.
Probationary reviews should be handled consistently by all managers, and therefore it is recommended that all managers should receive training in how to manage probation for new employees.
This article is correct at 02/08/2016
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.