Probation periods – what you need to know…
It is common practice that when a new employee is recruited, they are advised that their employment is subject to a 3 or 6 month probation period. Everyone is familiar with the concept and the expression but how significant are they?
Is a probation period a statutory requirement?
No – but employers use the concept of a probation period because it is generally regarded as good practice.
As long as the employee has under 2 years service, there’s no comeback?
No – it is generally assumed that as the employee has less than 2 years service, there is no comeback. This is not entirely true – whilst an employee must have 2 years continuous service before they can bring a claim for unfair dismissal the employee may still be able to pursue a discrimination claim if they believe the termination of their employment is related to another factor – such as disability (including mental health), sex, race, sexual orientation, age (otherwise known as protected characteristics).
In reality, this means that if you are going to dismiss an employee for unsuccessful completion of a probation period and they have – for instance MS, a mental health condition such as bi-polar or they may have been diagnosed with cancer, be aware of the risk. Also be cautious if the employee alleges their work performance in the probation period is being adversely impacted by menopause symptoms.
Does notice entitlement change after completion of a probation period?
Not necessarily but it can do – many Companies choose to increase the period of notice when the probation period has been successfully completed, however, this is employer choice rather than a statutory requirement. Successful completion of a probation period can mean the employee qualifies for other benefits – maybe Private health care, participation in a bonus scheme.
What are the most common outcomes at a probation review after 3 or 6 months?
Either – successfully completed or unsuccessful completion which means employment terminates or extension of probation period
Is it a good idea to extend Probation periods?
Yes, if you have doubts or the decision is border line. But, if you are going to extend, the employee needs to know how long the extension is and importantly, what they have to do in order to successfully complete their probation period – confirm this in writing either in a letter or in a probation review document.
In theory, the probation period can be extended several times but this might make you look indecisive!
Don’t wait until the probation period to highlight performance issues – address them as they arise – don’t wait? Feedback is more effective in the moment.
Is a probation period the same as a trial period?
The terminology can cause confusion. Generally speaking, when an employee starts with a new employer, their employment will be subject to a 3 or 6 month probation period but they may choose to say “I’m on trial”. Strictly speaking, a trial period applies when an individual is potentially in a redundancy situation and is being offered a new role as an alternative to being made redundant. In that situation, there is a statutory entitlement to a trial period in the new role. It is also important to understand the concept of probation periods and new roles. For instance, the employee has been with the Company for over 2 years and gets promoted to a new role and is told, it’s on a 3 month probation period.
To be clear – if it doesn’t work out, you can still exit the employee because of the probation period but the likelihood is that they will bring a Tribunal claim because – regardless of the probation period in the new role – they have over 2 years service. The more sensible way to proceed is to give the employee a trial period and the option to return to the role they were doing before the promotion – the “soft landing” option.
How much detail do you have to give if a probation period is not completed successfully?
As a general guide – less is better. Just say employment is being terminated on the grounds that they haven’t completed the probation period. Don’t go into loads of detail – yes, give examples and instances but keep it simple and don’t prolong the conversation. Always confirm a termination due to unsuccessful completion of the probation period in writing.
Should the probation reviews be documented?
Yes – good practice suggests the probation period reviews should always be documented. Similarly, document 1-1s with the employee during the probation period ensuring that issues are addressed quickly.
Can you terminate an employee’s employment on the grounds of unsuccessful completion of the probation period if they have mental health issues?
Yes you can but this will not be without some risk and will be dependent on a multitude of other factors. Extending the probation period may be an option in the circumstances but before making the decision, assess the risk because the employee may have the ability to bring a discrimination claim based on their mental health issues.
Whatever the myths, generally speaking probation periods are good as they provide a timely reminder to review performance after 3 or 6 months and make a decision about continued employment but they are only as good as the line manager making the decision. Don’t back away from difficult discussions!
Adrian Berwick provides HR support to businesses and if you want help dealing with a difficult issue, contact Adrian on 07885 714771 or adrian@abhrsolutions.co.uk
