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Back to Basics: The Probation Period

A probationary period is essentially a trial period for a new employee. It is not a legal concept; it is a management tool. It allows both parties to assess objectively if the new recruit is suited to the role. Employers must ensure they review the new recruit at regular intervals during the probationary period. The following should be taken into consideration when reviewing:

  • The individual’s overall capability;
  • Technical competence;
  • Behavioural competence, e.g. team-working & cooperation;
  • Performance;
  • General conduct.

There is no legal requirement for employers to use probationary periods. However, they are useful in that (a) you may allow different contractual rights during a probationary period (as far as the law allows), (b) it concentrates everyone’s mind on establishing whether the individual is appropriate for the job and/or (c) to establish what other training needs and support he or she may need. Generally probationary periods are either 3 or 6 months in duration.

Key Issues

  • Make sure you use the probationary period properly and carry out adequate reviews. If you’re going to use them, don’t just let the probation lapse. If an individual isn’t quite right, assess whether you feel they can improve. If you believe they can, consider extending the probationary period and, when doing so, ensure you inform the employee why you are doing so and what improvements you expect to see. If you don’t think the improvements will materialise or the issue is conduct related, consider termination at the end of the probationary period.
  • Dismissal during a probationary period will usually mean that the employee has not acquired continuity of service (two complete years) and therefore cannot claim unfair dismissal. However, without any paperwork evidencing the reason for the dismissal, the individual may be able to initiate a claim for discrimination (which has no continuity of service requirement) which the employer will be required to defend.
  • You may apply a probationary period when an employee is promoted to a new position. Usually this is when the roles are significantly different from the previous role. Care should be taken to ensure that in such cases the interview process measures competence and that any support agreed is delivered e.g. training / coaching or mentoring. Make sure that the situation is clearly documented, together with the likely outcome if he/she fails the probation (e.g. a return to the previous position held). If the employee has sufficient service to claim unfair dismissal, this ‘promotion’ probationary period doesn’t mean you can simply terminate their employment if they fail the probation in the new role as they will have the right to claim unfair dismissal.
  • It is advisable to hold a review meeting as the probationary period approaches a conclusion, even if you are entirely happy with the performance of the individual. This meeting should be documented as evidence of any discussions.
  • If an employer reviews the new recruit regularly and provides the feedback throughout probation, there shouldn’t be a necessity to extend. Either they have met the standard or are below it. There are some cases where an extension to measure consistency is appropriate. In such circumstances, an extension can be agreed. The employer must be clear why the extension is required and how the employee will be measured during the extension. The employee must also be aware that failure to meet the standard may result in the contract being terminated. The extension should not exceed the length of the original probationary period.

If you found this article interesting then why not read our back to basics relating to holidays and employment contracts.
Here at SCE Solicitors, we have a wealth of experience in assisting employers maintain contractual documents. If you would like to discuss any questions relating to probation periods or would like us to review your contracts, please contact me on 01133 50 40 30 or at hello@scesolicitors.co.uk for a free legal audit.

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SCE Solicitors is a boutique employment law practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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