Probationary Period and Performance Issues

By Susanna King

Question:

I have a member of staff who commenced employment with the practice on 01 March 2012 with a six month probationary period. The individual has several performance issues and is not at the required standard the practice would expect at this point. As the individual is within her probationary period can I dismiss her, providing I give the individual the required period of notice as stated within her contract of employment?

Answer:

On commencement of employment most employees will be subject to a probationary period which is outlined within the contract of employment. The purpose of a probationary period is to allow a specific time period for the employee and employer to assess suitability to the role after having firsthand experience within an organisation.  Therefore in the event that an individual does not like the role or is not suited to the expectations of the role, termination of employment can be facilitated. To conform to the legislation in respect to dismissal, an employer needs to show that they have followed a fair and reasonable procedure.  Therefore it is important, in all cases, for practice’s to adhere to their own procedures regarding dismissals.

In the event of poor performance during the probationary period guidance should be given to the individual to assist improvement. During a probationary period an employer is expected to continually review an individual’s performance, therefore a probationary period is only effective and worth having if the practice ensures regular probationary reviews take place in which performance (and any other issues) can be identified in order for improvement to be achieved.

Most policies or contracts of employment state the full disciplinary procedure is not usually considered appropriate for employees working within the probationary period.  Therefore, in such situations I would suggest you meet with the individual (this can be done on an informal basis in the first instance) in which you should outline the concerns you have with the individual’s performance and what the expected standards are for the role. I would recommend that you set specific targets for the individual to achieve and warn that failure to achieve the targets may lead to dismissal, in line with practice’s disciplinary procedure and the terms of the probationary period.

If the individual does not improve and fails to meet the required standard then I would suggest you write to the employee inviting them to a meeting at which you are contemplating dismissal. You should provide them with copies of relevant documentation which forms the basis of your case for dismissal. They have the right to be accompanied at the meeting by a work colleague or union representative.

At the meeting the individual should be given a full opportunity to comment on the reasons for their poor performance and to put forward any defence or arguments to explain it. As an employer you should look at what you have done to help support the individual including any further coaching or training you have provided and look at the targets they have failed to meet. After the meeting make your decision based on the facts and the individual’s response. If your decision is to dismiss, inform them in writing, noting their right of appeal, and conforming with the notice period set out in their contract.

In all cases where you are monitoring and reviewing performance you should document your findings to date, staff comments, events, reviews, the decisions you have made, the targets and standards you have set, and the reasons for them.

Whilst an employee cannot claim unfair dismissal in the first year of service, which has now been increased to a two years qualifying period for employees starting on or after 6 April 2012, if you dismiss someone without going through a fair dismissal process an employee can claim wrongful dismissal, for which there is no length of service requirement.  Wrongful dismissal occurs when an employer dismisses an employee in breach of the employer's contractual or statutory obligations, for example by failing to follow a contractual disciplinary / dismissal procedure or failure to give contractual notice.  Employers can be required to pay damages for wrongful dismissal if taken to an employment tribunal. It is also worth highlighting to you that, if the individual has a protected characteristic as per the Equality Act (for example is disabled) then there is a potential risk that they could make a claim in regards to discrimination and this is something that you should bear in mind when making decisions.

In addition to the above, in situations where it may be appropriate to extend the probationary period for an employee who has not reached the required standard, this can be done provided that the employer's right to extend the probationary period was specified in the employee's offer letter or contract of employment. If the contract does not allow for an extension but the employee convinces you at a meeting that they will improve and agrees to an extension of the probationary period, then this could be offered as an alternative to dismissal. You can extend the probationary period in this way for a reasonable time, and I would recommend a maximum of 10 months probation in total, by which time the individual should have achieved an improvement to the required standard or you should have dismissed. Any extension to the probationary period should be confirmed to the employee in writing prior to the expiry date of the most recent specified probationary period.

Please note the above guidance is of a general nature. It is important that practices ensure policy guidelines and contractual obligations are followed.

In addition to the above FPM members can obtain further information via the FPM website. Alternatively members can also email specific questions about employment issues to advice@firstpracticemanagement.co.uk where your question will be treated in confidence and will normally be answered (by email) within 2 working days of submission.

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