The reality is, the person who performed best at the interview may not necessarily turn out to be the best fit for the job. The probation period offers employers – and employees – a defined timeframe in which to decide if the ‘fit’ is right and the employment relationship is mutually agreeable.
The purpose of the probation review process is to allow your organisation the opportunity to determine if an individual is meeting the requirements of their new role.
Performance can be measured in a number of ways, in areas such as technical expertise and capability to fulfil the role to the required level and standard, and contributing to the culture and ethos. These measures and targets should be set and made clear by the employer to the employee from the outset of the employment relationship.
If issues are arising during the probation period, the probation review process can help to take steps to try to improve the situation by, for example, formalising feedback and setting targets for the employee.
If you are still not satisfied with the employee by the end of the probationary period, then the process can provide a structure for the fair dismissal of the employee.
The probationary review process and contracts of employment
It is advisable to include terms relating to use of the probationary period within the employment contract. The contract should state:
- How long the probationary period will last – typically three months, but it can be anywhere between one and six months.
- Whether the probationary period can be extended.
- In what circumstances the probationary period can be extended.
- Whether or not the employee can appeal against a failure to pass their probationary period.
Generally, having established the most important principles in the contract of employment, you should elaborate on the process in the Staff Handbook. This should cover who is responsible for holding the review meetings, how often they will be held and how the employee will be informed that they have passed the probationary period. It should also give details of how an employee may appeal against a decision to dismiss them following a failed probation; this is covered in more detail below.
The contract should also state which parts of the contract will not apply during the probationary period. For example, most employers give a shorter notice period (for example, one week instead of one month), a lesser entitlement to sick pay, and no access to private healthcare schemes or other benefits.
What should happen at the probation review meeting?
Usually the probation review meeting will be held between the employee and their line manager. It is worth considering giving training to line managers on how to handle probation meetings in order to ensure consistency throughout your organisation.
How many probation review meetings you should have depends on the length of the probationary period. If the probationary period for the role is two months, then it makes sense to hold a meeting after one month, followed by one again at the end. However, if the probationary period is six months, you may wish to allow the employee a longer period of time to settle into their role before you ask the line manager to review their progress. This could be after three months. It could be that within your organisation different roles have different probation lengths depending on the complexity of the role.
It is important that a note is taken of the probation meeting. Your organisation could prepare a template for managers to fill in to ease the administrative burden on them. It must be sent to the employee afterwards in order that they will be clear as to any improvements they need to make, and to avoid any misunderstandings. It is also an important document because in law it will go towards showing the reasonableness of your behaviour as an employer.
Questions to ask during the probation review meeting
The line manager should ask the employee the following questions:
- how do they think they are performing;
- are they enjoying the role; and
- do they have any training needs.
In turn, the manager should feed back on any areas of improvement they have identified. These should be explained as specifically and constructively as possible.
Feedback should identify precisely what the employee needs to do to improve, ideally with examples. It should be constructive so that the employee is not disheartened.
It also is important for the line manager to remember that the probation meeting is not a disciplinary meeting – the aim should be to help the employee to succeed; it may be that they simply need more time in the role to make that happen.
Towards the end of the meeting the manger should inform the employee when they will meet again, and agree targets for improvement by that date should they be necessary.
What if the employee fails their probation period?
Of course it is inevitably the case that some employees will fail their probationary period. This may be because of their performance in the role, or that their conduct was below standard (persistent lateness), or that they had very high sickness absence rates.
Competency and / or conduct
At the end of the probationary period, you should hold a meeting with the employee to review their progress. It is recommended to give your employee the option to be accompanied by a colleague or a trade union representative.
If, despite support provisions having been put in place and initial performance discussions, an employee is failing to perform the role to the required standard, you will have to explain this to them and present evidence to support your view. You should then ask for their feedback and provide the opportunity to respond to your points.
If opt not to extend the probation period, you nay have grounds for dismissal.
In this case you should inform the employee, and confirm in writing, the reasons why they have failed the probationary process, how much notice they are receiving, the last date of their employment and their right to appeal. The letter should also explain the deadline by which the appeal must be submitted and to whom it must be sent. It is important to give the employee the option to appeal as it will help to ensure that they cannot make a claim of wrongful dismissal against you.
Wrongful dismissal is the legal term for a dismissal that is fair, but which was procedurally deficient in some way. If you make sure you have records of the probation meeting(s) held with the employee, and allow them the opportunity to appeal against your decision, this should prevent a claim against you of this kind.
Sickness or disability
If an employee has been off sick for an unacceptable amount of time during their probationary period then you may dismiss them during or at the end of the period for this reason, although it is advisable to consider granting an extension to the probationary period first. You should hold a meeting with the employee, as described above, to discuss your findings. A letter should be sent outlining your reasons and, as above, offering them the opportunity to appeal.
However, you should consider two possibilities before you dismiss your employee. First, it is important to establish whether the illness was work-related. In that case, you have a duty to investigate the matter further and work out if there are changes that you need to make as an organisation in order to prevent new starters from needing to take time off. Second, you must find out whether the employee has a disability. If they do have a disability then you need to consider whether there are adjustments that you could make to enable the employee to do their job without taking so much time off. For example, adjusting an employee’s hours of work, providing them with equipment so that they can work from home, or providing them with a car-parking space near the office, could all make a difference to the employee’s performance overall.
Dismissal for other unlawful reasons
An employee who is dismissed during or at the end of their probationary period is unlikely to meet the two-year qualifying period for claiming unfair dismissal. However, you should be aware that the law will regard some dismissals as automatically unfair, regardless of how long the employee has worked for you. Automatically unfair reasons include pregnancy, asserting a statutory right (for example, the right to be paid the National Minimum Wage) and whistle-blowing. You are still able to dismiss an employee who falls into one of these categories. However, if the employee made a claim in the Employment Tribunal that you had dismissed them for one of the automatically unfair reasons, the law would require you to prove what was the actual reason for the dismissal.
Employees with ‘protected characteristics’ (including gender, race, marital status and sexual orientation) are also protected against being dismissed because of their protected characteristic(s). Again, in this situation the employer would have to prove, if challenged in the Tribunal, that the employee’s dismissal during the probationary period was not because of their protected characteristic(s), and show the actual reason.
Extending a probationary review period
It is usually possible, and in fact generally advisable, to extend a probationary review period where an employee is failing to meet the requirements of the role. It must be stated in the employee’s contract of employment that this is a possibility, and outline the conditions under which it will happen. These can be quite generic, for example, that more time is needed to assess the employee’s performance.
If you do decide to extend it you should write to the employee explaining the reasons why you have decided to make the extension, and the length of the extension.
Generally, you should be careful not to miss deadlines during the probationary period process. For example, if your employee is on a three month probationary period, but you do not hold a review meeting at the end of the three month period, the employee could quite reasonably assume that they had passed the probationary period and become entitled to any additional contractual benefits accrued as a result.
How much notice do you have to give for dismissal due to failed probation period?
The notice you have to give for a dismissal due to a failed probation period is that which is contained in the employee’s contract of employment. Most employers offer statutory notice only during probation, which is one week, assuming the employee had over one month but less than two years of service.
Dismissal during their probation period
You can dismiss an employee during their probation period. It is only once an employee has two years of service that they have the legal right to be given a legally fair reason for their dismissal. However, it is strongly advised to follow a proper procedure and engage fully with an employee if you wish to dismiss them during their probation period.
Can an employee claim unfair dismissal for being dismissed while on probation?
In most cases, it is unlikely that an employee will be able to claim unfair dismissal for being dismissed while on probation, as they need to have two years of service in order to make such a claim.
However, if the actual reason for the dismissal is not that they have failed their probationary period, but it relates to a reason deemed to be automically unfair (such as in relation to discrimination for a protected characteristic), they may be able to make a claim for unfair dismissal.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Anne Morris is the founder and Managing Director of DavidsonMorris. A highly experienced lawyer, she is recognised by Chambers & Partners and the Legal 500 UK as a trusted adviser to multinationals, large corporates and SMEs, delivering strategic immigration and global mobility advice. Anne is also an active commentator on UK immigration and HR matters.
