To adopt or not to adopt. Some businesses have abandoned probationary periods. They take the view that all of the employees are on probation all of the time. Their managers should be continually assessing and managing their employee’s performance. If you live in the real world where people don’t always do what they should do, here are 10 tips on managing probationary periods.
Length
Probationary periods are typically between three and six months. However, it will depend on the job and your requirements. Consider whether to adjust the length of some of your existing probationary periods because of the skill and responsibility required or the time it will take you to properly assess your employee’s performance. If you do what you’ve always done, you’ll get what you’ve always got. It may be time to change.
Writing
Describe the aim of the probationary period, its length along with how and when you will assess it. That will manage your employee’s expectations. From 6th April 2020, the written statement of terms and conditions of employment must include the probationary period, its length and any conditions attached to it. Explain that you may extend the probationary period and how you will treat contractual benefits.
Get the best outcome
Use your induction process and a job description to describe the employee’s role and responsibilities. Help your employee settle in and allow them to ask about the job and your business. Communication is key. Remember, like a first date, they are assessing you as much as you are assessing them. Provide additional contact with a line manager if your employee is working remotely.
Use regular one-to-one meetings to assess progress and to encourage and identify training needs. If they need to improve, tell them how, why and when you will review their performance. Don’t wait until the end of the probationary period before addressing performance issues.
Statutory employment rights during the probationary period
Probationary periods have no legal status and an employee who is on probation has the same statutory employment rights as other employees. It is the length of continuous service that defines an employee’s statutory employment rights, including rights in the event of dismissal.
Probationers are entitled to the national minimum wage, statutory sick pay and rights under the Working Time Regulations 1998, including annual leave entitlement. If you dismiss your employee during probation, you must compensate them for their accrued but untaken holiday.
Contractual rights during the probationary period
You can set less generous contractual terms during the probationary period than those that apply once probation is completed, including a shorter contractual notice period. Employees who pass their probation may benefit from a salary increase and access to other benefits, such as bonuses or share schemes.
Explain the differences in the contract.
Family-related leave and rights
A probationer is entitled to family-related rights in the same way as your other people, including time off for antenatal and adoption appointments and family-related leave and pay, if they otherwise qualify.
If your employee takes significant leave during probation, you may have difficulty assessing their performance. Consider extending their probation.
Extending the probationary period
Typically, you will consider extending probation because your employee has not met your standards, but you believe they may improve, or your employee has been absent and they need more time. Ensure that your contract entitles you to extend probation and sets out the circumstances under which you may do so. Include the terms and conditions that will apply during the extension period.
If you don’t you could be in breach of contract, for example, if the extension delays a salary increase or access to benefits. Meet your employee to discuss the extension and confirm it in writing with reasons.
Dealing with disciplinary issues during the probationary period
If you do not want to be bound to follow your formal disciplinary procedure during probation, say clearly in writing, in the contract and disciplinary procedure, that there is no contractual obligation for you to do so.
As probationers do not normally have sufficient service to claim unfair dismissal, they cannot challenge the procedural fairness of a dismissal in the employment tribunal. However, a probationer could claim that dismissal was for an automatically unfair reason or for reasons that amount to unlawful discrimination. Therefore, where you suspect an employee on probation of misconduct, you should investigate before acting. If challenged you will be in a better position to demonstrate the true reason for dismissing.
Confirming the employee in their post
Once your employee has completed their probationary period, notify them of this in writing. If the contract provides for a salary increase and/or more generous benefits after probation, you should also tell the employee in writing, and state when they take effect.
Dismissal during or at the end of a probationary period
You may choose to dismiss your employee for failing to complete the probationary period satisfactorily. Your employee may have failed to reach your required standard even with training and support or you may dismiss them for misconduct. Given their short service, to bring a claim your employee would need to allege discrimination or demonstrate that their dismissal was for an automatically unfair reason such as asserting a statutory right or making a protected disclosure.
Make sure that you have a calendar reminder two weeks before the end of the probationary period so you that can arrange a meeting. If a shorter notice period applies during probation, you should dismiss before the end of the probationary period rather than on the day it ends.
