The Importance of Probationary Periods Now and for the Foreseeable
Probationary periods have long been an effective tool to effectively manage employees, especially when assessing their long term suitability for post.
With the upcoming change to unfair dismissal rights [Read this for more info: Must read for Employers: Managing Day One Protection from Unfair Dismissal — Osborne & Wise], probationary periods are going to be vital in giving some flexibility in what initially appeared to be complete removal of an employers right to dismiss without process / fair reason (as long as the reason was not discriminatory) in the first two years’ of service.
Penny Morrison looks in detail at what we can expect when it comes to the all-important new probationary period.
o It is anticipated that the new regime will introduce an “initial period of employment” which effectively will be a statutory probationary period expected to last up to 9 months where a lighter-touch dismissal process is likely to apply.
o During this period, employers are likely to have more flexibility to dismiss employees for fair reasons which they are able to justify, but must still follow a basic process, such as holding a meeting to discuss those concerns and allowing the employee to be accompanied in the usual way. Importantly, this lighter touch process will not apply to redundancies and a full and fair consultation process will need to be followed for all employees regardless of length of service.
Strategies for Effective Management of the Initial Probationary Period
Set Clear Expectations from the Outset
o Clearly communicate performance indicators (KPIs), behavioural standards and job expectations during the interview process and, crucially, at induction. Consider asking the employee to sign up to these in the same way they are required to sign the employer’s privacy notice.
Formalise Probation in Contracts
o Always include probationary terms in the employment contract, ensuring its terms spell out the length of the probation, criteria for assessment, notice rules and the possibility and process for extension.
o specify what happens at the end of probation – confirmation, extension or termination – to avoid misunderstandings and disputes.
Conduct Regular Reviews and Check-ins
o Schedule at least one, preferably two check-ins throughout the initial probationary period together with a final assessment, with honest, constructive feedback and clear KPIs.
o Address concerns early, offer support and allow employees to ask questions or raise issues at an early stage.
Keep Detailed Records
o Maintain records of all meetings, feedback, warnings, agreed actions and timelines.
o Good record-keeping is an essential and compelling tool for defending decisions if challenged and to demonstrate a fair, transparent process.
Provide Support and Training
o Invest in thorough onboarding and tailored support to help new hires succeed.
o Identify performance gaps early and offer appropriate training and resources
o Train and empower managers to deal with performance and conduct issues when then arise rather than ignore them until they reach a point where relationships have broken down and dismissal is inevitable.
Apply a Fair and Transparent Process
o Even during the statutory initial probationary period, follow a fair process for dismissals – typically a meeting to discuss concerns, allowing representation and providing written reasons for any decisions.
o Update internal policies to ensure fair procedures are consistently applied, always considering the ACAS Code of Practice on Disciplinary and Grievance Procedures.
Make Decisions Promptly and Communicate Clearly
o At the end of probation, confirm outcomes in writing e.g. whether the employee has passed and what changes, if any, apply for example to notice periods, if the period is extended, for how long and with reasons, or follow a fair process if it is envisaged that the employment may terminate.
Common Pitfalls
Ignoring Issues
Do not ignore performance issues or delay reviews. Failing to diarise and conduct timely probation reviews can result in employees being confirmed by default, making it more difficult for the employer to address underperformance and move to termination on favourable terms.
Failure to Communicate
Communicate expectations clearly and early, ensuring the employee has the time, support and tools to reach the required standards. Neglecting to set clear performance goals or provide structured feedback and support leaves employees uncertain about expectations and can lead to claims of unfairness if dismissal occurs without prior warnings.
Discriminatory Decisions
Consider any protected characteristics and whether adjustments need to be made e.g. are there any health concerns which might be adversely impacting the employee’s ability to meet the required standards? The law in this respect is not changing. Employers are already obliged not to discriminate even prior to the commencement of employment e.g. recruitment and advertisement of roles.
Breach of Contract
Ensure all actions are contractually and legally compliant. For example, extending a probation period without an express contractual ability to do so is likely to amount to a breach of contract. If no extension right exists in the contract, it is advisable to seek written agreement from the employee before proceedings.
Inconsistent treatment
Applying different standards or processes to probationary employees can result in claims of unfairness or discrimination. Consistency across roles and departments is key unless there are extenuating circumstances in a particular situation.
Lack of Documentation
Failing to keep contemporaneous records of meetings, feedback, and performance discussions undermines the employer’s ability to justify decisions if challenged, and weakens the employer’s legal position.
Failure to Communicate
Not explaining the probationary process, expectations, and potential outcomes during induction can create confusion and is more likely to lead to subsequent disputes further down the line.
Avoiding Difficult Conversations
Avoiding or delaying addressing performance or conduct issues during probation allows minor problems to escalate, making them harder to resolve and decisions to terminate more difficult to justify.
Lack of Adequate Support and Training
Failure to offer the necessary resources, training, or supervision, prevents employees from meeting expectations and can be determinative of both procedural and substantive unfairness if performance is later criticised.
By embedding these practices into the employment relationship from the outset, employers will be better equipped to manage risk, support new hires and ensure compliance with the evolving legal landscape around probation and unfair dismissal.
Osborne & Wise regularly provide training to clients on topics such as this. If you’d like to discuss your training needs, please do not hesitate to get in touch.