24 Jan 2018
All employers have situations where the candidate they employ does not live up to expectations. Finding the right candidate is always a challenge and every so often, recruitment decisions may not work out as anticipated.
In the fast paced business environments of today, more and more employers are recognising the importance of having a ‘safety net’ to address recruitment misjudgements. That safety net in this context is referred to as a ‘probationary’ period or ‘trial’ period.
Probation Period: What It Means for Employers
Irrespective of the terminology used, this is a period of time in which the employer can assess suitability of the individual against the role they are recruited to before the employment is confirmed. Although the probationary period allows the employee to also determine whether the role meets their expectations, undoubtedly, it provides greater benefit to the employer.
This flexibility is supported in that, notice periods during the probationary period tend to be much shorter, usually a week on either side, allowing both parties to easily bring the employment relationship to an end as necessary or required. If used appropriately, the probationary period is an effective tool to avoid employers struggling with employee relations issues further into the employment relationship.
Overcoming Probationary Misconceptions
The key to maximising the benefits of the probationary period, is that employers overcome some basic misconceptions and understand the simplicity of this process, against the possible pitfalls which expose employers to litigation. This should hold more significance for employers, given the recent abolishment of tribunal fees making it free for employees to bring a claim against their employer.
A common misconception is that dismissals during or at the end of the probationary period are automatically fair. This is likely to stem from the view that a probationary period equates to the employee having no statutory employment rights. Though an employee cannot bring a claim for unfair dismissal during the first two years of employment, within their probationary period he/she is entitled to all other employment rights including the right to national minimum wage, rest breaks, statutory sick pay and the various family friendly rights.
Therefore, an employee who has been dismissed during their probationary period, could bring a claim for ‘wrongful dismissal’ for which there is no qualifying period. An evaluation of the risks is therefore vital when considering a probationary dismissal. To rely on a probationary period, it should be made clear at the offer of employment stage and within the contractual terms that the employment is subject to the satisfactory completion of a probationary period, with a specification of its duration. There is no law specifying the length of a probationary period, though it should be reasonable against the requirements of the role. Often a period between three and six months is deemed reasonable.
Extending The Probationary Period
If the contract allows, the probationary period can be extended for a reasonable period, normally between one and three months, provided specific reasons for the extension are given.
Ideally, an extension of the probationary period should be with good reason; so for instances where it is felt the employee may be able to demonstrate an improvement in performance with further training, or where the employee’s performance has not been effectively evaluated due to periods of absence. An extension can also go some way in evidencing that a reasonable process has been undertaken.
Although, often overlooked, the usual test of ‘reasonableness’ should be applied to probationary dismissals. Therefore to dismiss for reason of conduct or performance, the employee should know what is expected of them. In addition to a detailed employee induction, regular interventions, reviews, support and training throughout the probationary period should re-affirm the requirements of the employee.
As such, the probationary period would be fair and safe, giving employees a reasonable opportunity to demonstrate improvements and avoid a dismissal, and ensure that only genuinely unsuitable employees are being caught in the ‘safety net’. Any complaints or grievances from the employee that may arise during the course of the probationary period, particularly those involved statutory rights, must be thoroughly investigated and appropriate solutions must be put in place. Ensuring there is documentary evidence of the process throughout is key, and, it could be the difference between a tribunal win and loss.
If you’re facing challenges with an employee who is in their probationary period, or any other sickness, disciplinary, grievance or employment law issue, please contact us on 01455 858 132. We’re here to help.
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