Probationary periods will be something most employers know all about, or at the very least have heard all about. The vast majority of contracts will contain terms about a probationary period that will apply to any new employee. Fundamentally, the purpose of a probationary period is for the employer to assess whether the recruit is the right fit for the role. It’s also a chance for the employee to take a view as to whether the role is right for them – a point that is always worth remembering.
From an employment law point of view, it’s important to make sure the contract expressly provides for a probationary period, states under what circumstances it can be extended and confirms whether the employee will be told in writing if they have successfully passed probation. The final point is particularly important if there are any benefits or enhanced notice periods that are triggered upon passing probation as it removes any dispute as to whether probation was passed or not.
This is also an area where being pro-active can save a lot of work, time and cost in the long-run. Often employers will not actively monitor progress during the probationary period, sometimes not even discussing progress until the meeting held to discuss whether they have passed or not.
Whilst the legal risks attached to failing an employee’s probation are reduced given the limited length of service they will inevitably have, an employee is far more likely to have a fire in their belly if they have heard of no issues for six months and then all of a sudden a series of concerns are raised at the very end of that period.
Actively monitoring and addressing matters during the probationary period brings to life the real point of this process. Having meetings with the employee to discuss the good and bad (and backing these up in writing) builds an audit trail for the employer, bring clarity to both parties and gives you the best chance of ensuring that you have someone who can do the role to the standards required.
If those relatively simple management steps are taken it significantly reduces the chances of a claim from the start (as the employee is clear on what issues there may be throughout). Recruiting for a role and then having someone fail a probationary period is disruptive enough, never mind having to deal with blowback from that on top of a new recruitment exercise.
Being pro-active in this way also helps mitigate against the risk of discrimination claims which can be brought with any length of service, no matter how brief. By addressing issues a disability may come to light giving the employer the chance to investigate this and see if with some reasonable adjustments the employee can actually flourish. It’s more efficient for the employer’s business, significantly reduces legal risk and will no doubt engage the employee who can see the employer supporting as much as they can before making any final decisions.
So, in short, probationary periods are there so that both parties can ensure that they have made the right choice. By being pro-active from the start, employers can utilise the legal aspects to create efficiency, buy-in and, most importantly, growth.
