A probation periods is a period of time, at the start of an employment relationship, during which the employee’s suitability for employment is assessed by their employer before an appointment is made permanent.
The scope and terms of any probation period are governed by the contract of employment and will typically last three or six months.
The purpose of a probation period is to provide a reasonable amount of time to assess the employee’s suitability for the role. Probation periods are not compulsory and don’t attract any special rules around termination of employment. The rights of the employer and employee during probation are governed by the wording of the contract and normal statutory rules still apply.
The key benefit of a probation period is to provide structure around the assessment of suitability so that employees know how long they have to demonstrate they are suitable for the job. Probation periods only really have value for an employer if it is properly managed and the employee does utilise the time to assess the employee and to highlight matters that are not being properly carried out.
The length of a probationary period is likely to depend on the nature of the job and how long it will take the employer to assess performance for the purposes of confirming continued employment. It is not unusual to see probationary periods of three or six months. In general, a probation period should not last more than 12 months.
It is relatively common for employers not to manage probationary periods effectively. For example, a manager may identify at an early stage that a new employee is not meeting the required standards but do nothing to bring this to the employee’s attention. Consequently, an employee may be surprised to hear, at the end of the probationary period, that they have not passed (having been given no support to meet the required standards and no chance to improve).
Some employers choose not to have probationary periods on the basis that a new employee will not have the qualifying service to bring an ordinary unfair dismissal claim until they have 2 years’ continuous service. Instead, they simply terminate, with notice, the employment of an employee who does not meet the required standards well ahead of the employee accruing two years’ continuous service.
However, if you consistently apply and properly manage a probation period for new employees it will help to mitigate against risks of discrimination claims. Discrimination claims can arise where employees feel they have been poorly treated because of a characteristic such as their race or a disability and a lack of consistency in approach to assessment of suitability can increase the risk of claims of this nature. An employee does not need 2 years’ continuous service to make claims for discrimination.
An employee is perhaps less likely to bring a claim for discrimination if they feel that they have been treated fairly. This is likely to involve regular communication with and objective feedback from their manager, as well as progress updates throughout the probationary period. In this way, it may be possible to manage an employee’s expectations before any final decision on their continued employment is reached. While the inclusion of a probationary period may serve to focus an employee’s mind on the fact that their continued employment is not a foregone conclusion, it will achieve little if it is not managed effectively.
Extending a probationary period
If an employee is failing to meet the employer’s expectations, guidance should be given on the standards of performance and/or behaviour the employee needs to achieve. Where considered necessary, and only if the employer has a contractual right to extend the probationary period, the employer can notify the employee that their probation is being extended before the original probationary period expires.
The effect of absence during a probationary period
In some cases, an employee may be absent for a significant part of their probation period. This may be the result of sickness, disability, maternity leave or some other reason. In such cases, the employer may need to resist the temptation to regard the employee’s performance as unsatisfactory given their absence. It should instead consider exercising any contractual right to extend the employee’s probationary period or inviting the employee to agree to an extension for a period equivalent to their absence. This will give the employee a fair chance to prove themselves and the employer the opportunity to make an informed assessment of the employee’s performance.
Unsuccessful probation: terminating employment
Where, during the probation period, an employer decides the employee is not suitable for the role they may choose to terminate employment by confirming that probation has not been successfully passed.
However, failing probation is not a lawful reason to terminate employment. Even in a probation period an employer should still be able to identify a lawful basis for the dismissal such as conduct or performance.
If probation is not successful, an employee can be dismissed with notice in accordance with the contract of employment (subject to any minimum periods of notice required by law).
Author: Sarah Edwards, Senior Employment Law Advisor at Howarths