- Posted Tuesday August 4, 2020
With so many new appointments being subject to the successful completion of a probationary period and so many questions coming into the First Practice Management advice line asking how to safely dismiss someone on a probationary period I felt that some guidance on probationary periods would be helpful.
There is substantial evidence to suggest that probationary periods increase the probability that new employees will succeed in their new roles. The purpose of a probationary period is to allow a specific time period for the employee and employer to assess the suitability of the role after having first-hand experience.
On the one hand, it gives the employer opportunity to assess objectively whether the new employee is suitable for the job taking into account their capability, skills, performance, attendance and general conduct. On the other hand, it gives the new employee the opportunity to see whether they like their new job and surroundings.
LENGTH OF PROBATIONARY PERIOD
There is no law determining the length of a probationary period. However, there is an expectation that the employer will be reasonable. It is typical for a probationary period to last no longer than six months, and three months where an employee is moving to a new post internally. The probationary period may sometimes be extended, though this should be mentioned in the contract of employment.
THE PROBATIONARY PERIOD
At the start of the probationary period, the manager should discuss the following with the new employee:-
- What the employee is expected to achieve in their job during the probationary period and thereafter.
- Details of the core values of the organisation and behaviours expected of the employee.
- The standards of regular attendance expected from the employee.
- The standards of customer service expected from the employee.
- Any development required to help the employee to do their job.
- How any problems with performance will be addressed.
- When the probationary period review meetings will take place.
The manager should structure the process so both parties are clear about expectations. The probationary period should commence with the manager reinforcing the core values of the organisation with the new employee.
TRAINING AND SUPPORT
The manager should set out details of structured training, guidance, and supervisory support the new employee can expect to help them achieve the required standards. The manager should explain the mechanism for identifying and discussing any problem areas at the earliest opportunity, together with the provision of regular constructive two-way feedback.
REVIEW DURING THE PROBATIONARY PERIOD
During the probationary period, a series of formal review meetings should take place between the new employee and their manager. For example:-
Before the meeting, the manager should draft some notes to help discussions during the meeting. The manager should keep full, clear records and documentation of meetings, throughout the probationary process ensuring all documentation is signed off by both the employee and the manager with a copy being given to the employee.
WHEN AN EMPLOYEE ON PROBATION IS EXPERIENCING DIFFICULTIES
If the employee is experiencing problems at any stage during his/her probationary period the manager should discuss these with the employee and not wait until the next scheduled review meeting. The primary purpose is to bring about a sustained improvement in performance and to ensure that the employee has had sufficient opportunities to achieve this. At any review meeting with the employee where there are issues to be addressed, the following approach needs to be considered.
- Reinforce the areas where the employee is doing well.
- Be open and honest with the employee about his/her shortcomings. Provide documentary evidence whenever possible.
- Allow the employee to respond. There might be some other factors behind the problem.
- Try to reach an agreement on the nature of the problem. If a joint agreement can be reached the employee is more likely to react positively to any suggestion for improvement.
- Offer guidance and support on how to overcome the difficulties. This might include extra training/coaching or closer supervision.
- Ensure the employee understands the degree of progress required and that successful completion of the probationary period dependent on it.
- Warn the employee that if this standard is not reached it will be necessary to terminate his/her employment.
- In the case of misconduct, short of gross misconduct (for which summary dismissal will be appropriate) warn the employee that any further misconduct will lead to immediate termination of his/her employment.
SUCCESSFUL OUTCOME OF PROBATIONARY PERIOD
If the employee’s probationary period is satisfactory the manager should inform the employee at the final meeting that their appointment will be confirmed and a successful outcome letter will be sent to confirm this.
EXTENDING THE PROBATIONARY PERIOD
The purpose of extending a probationary period is to allow the employee further time to improve his/her performance to demonstrate competence in the full range of duties and required behaviours.
If a probationer’s performance is unsatisfactory in some areas but the managers feel that further training and support may bring the employee up to the required standard, an extension can be considered. This could also be appropriate in cases where the employee or the manager has been absent from the workplace for an extended period during probation due to circumstances beyond the employee’s control.
An extension should normally be granted only where special circumstances are justifying such a course and can only be made before the end of the original probationary period.
Where it is agreed that the employee’s period of probation will be extended, the manager needs to set out the terms of extension in writing. There is no specific law limiting the extension of probation periods. It is important to state clearly:-
- The length of the extension and the date on which the extended period will end. An extension is usually on a month by month basis or for a maximum of 3 further months.
- The reason for the extension – for example that the employee’s performance has fallen short of certain standards, but that the manager reasonably believes that an extension of time will be effective in allowing the employee to achieve these standards.
- The performance standards or objectives that the employee is required to achieve by the end of the extended period of probation.
- Any support such as further training that will be provided during the extension.
- That if the employee does not meet fully the required standards, by the end of the extended period of probation, his/her employment will be terminated.
It is not advisable to make extending probationary periods the norm. An extension should be agreed only if there are special factors that justify it.
TERMINATION OF CONTRACT
In order to give an employee a full opportunity to meet the required standards the manager will usually wait until the end of the probationary period before taking any decision to terminate employment, though if the employer is certain that the employee is not going to meet the standard required, a decision can be made to end the contract prior to completing the full probation period.
Where a decision to terminate the probationer’s contract has been made, the manager will meet with the employee, having given him/her at least five days notice in writing. The employee may be represented by a trade union representative or work colleague. The manager will clearly set out the reasons why the employee has unsuccessfully completed the probationary period and will give the employee the opportunity to present his/her case including any mitigating circumstances.
Most policies or contracts of employment state the full disciplinary procedure is not usually considered appropriate for employees working within the probationary period.
Whilst an employee cannot claim unfair dismissal in the first two years of service, 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 claim in regards to discrimination and this is something that you should bear in mind when making decisions.
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 firstname.lastname@example.org where your question will be treated in confidence and will normally be answered (by email) within 2 working days of submission.
The latest Information from ACAS, Personnel Today and the CIPD website has been used within this article.