Probationary periods are not a free-for-all

Have you been getting maximum benefit from probationary periods for new staff? Julia Gray examines the purpose and operation of probation and suggests how it can work most effectively in independent practice.

The purpose of a probationary period is to provide an opportunity to assess the suitability of a new employee and the means to part company with them more easily if they are unsuitable.

A probationary period is advisable for almost any new employee. The main exceptions would be very short-term contracts and very senior appointments.

There are two crucial requirements that need to be met for an employer to be able to take advantage of a probation regime: 

  1. The terms need to be included in the employment contract and clear to everyone concerned; 
  2. Managers must properly engage with the process and make a conscious, rational and evidence-based decision at the end of it.

The length of probation will depend on the nature of the job and how long it will take to assess the employee’s performance; commonly, it lasts between one and six months. The key feature of the probationary period is that it provides for shorter notice, allowing the employer to terminate the employment contract more quickly – and possibly more cheaply. 

Other rights

Other rights under the contract can also be subject to the successful completion of a probationary period; for example, the right to contractual sick pay. If the emp­loyee successfully completes their probation, they move to a standard set of contractual rights, including a longer notice period. 

A probation clause should set out, as a minimum, how long probation will last, what notice will apply during that period – subject to the statutory minimum – and the implications of passing or failing. 

If you would like to have the option of extending the probationary period, the employment contract should provide for that. 

It is important the employee understands from the outset the probationary process and what is expected of them. It is good practice to have regular, documented meetings throughout. If the end of probation comes and goes without being addressed, the employee will likely be deemed to have successfully completed it by default.

Unfair dismissal

An employee who has been sacked must have accrued two years’ service before they can bring most types of unfair dismissal claim. By the time notice expires following the end of a probation, an employee will not usually have enough service to bring a claim. 

For that reason, many employers opt not to follow their normal policy – or the Acas Code – when they dismiss an employee at the end of their probationary period. 

That approach is not without risk. The minimum service require­ment for unfair dismissal claims does not apply to several other types of claim, including claims relating to discrimination and whistle-blowing. 

When an employee has been absent for a significant proportion of their probationary period, the manager might have insufficient information on which to base a final decision. 

The level of absence itself might act as a deterrence to confirming the post permanently. However, if an employee fails their probationary period for a reason connected to a disability, maternity or other protected characteristic, then they would have grounds to bring a discrimination claim.

Another chance

Where an employee would otherwise fail their probation due to absence, employers should consider giving them another chance to prove themselves by exercising any contractual right to extend probation. 

If you do not have a contractual right to do so, you can invite the employee to agree to vary their contract to provide for an extension, which they might be willing to do if they see it as their only means to keep their job.

If the employee serves – or is paid in lieu of – their notice entitlement, they will not easily be able to succeed with a claim for breach of contract or wrongful dismissal in connection with that notice entitlement. 

However, a breach of contract claim of a different type might arise if your disciplinary/capability policy is contractual and you do not follow it. 

That is one reason why it is usually advisable to follow some degree of procedure in dismissing during a probationary period. Another reason for it is that it provides an evidence trail supporting your motivation for dismissal; for example, by helping you to refute any challenge that it was discriminatory. 

Now might be the time to review how effective your probation process is and whether any changes are needed to your current practice. 

If you have a practice manager, ask for feedback about their views and experiences, and whether they need any support or training to enable them to make the most of probationary periods.

Julia Gray (right) is a solicitor with Hempsons