Share this article

When you employ a new employee, you are trusting your recruitment process to be robust and to whittle out the people who are overselling themselves or simply can’t do the job. Reality kicks in when the new employee starts. In most circumstances, you will have got the recruitment process right, but what do you do if it turns out that you haven’t?

Including a probation period in your contract of employment will ensure that you and your employee have time to decide that you want to work together and that the employee is right for the role.  Your contract defines the length of the probation and its effect, typically with a short notice period, so that it is not too expensive to deal with a mistake.

As we do get regular questions about probation periods and what to do about a recruitment mistake, we thought a few tips on using your probation periods would be helpful.

Tip 1:   Check that the contract you issue has got a probation period

Once or twice a year, we get a call from a client to say that they can’t find the probation period in the contract that they issued to a new member of staff. Typically, this is because they have taken the last contract that they issued and use it to draft the contract for the new employee. If that contract was issued to an existing employee there will be no probation period.

Check the contract before you issue it, to make sure that it does have the probation period. If you think it doesn’t or you are concerned, let us know so we can check it for you. We can also issue the contracts on your behalf as part of the Peace of Mind we offer to our clients.

Tip 2:   Make sure your probation period includes a short notice period

One of the main benefits of a probation period is the short notice period. Typically, the notice during the probation period is one week (and sometimes, one day, if the employee has been employed for less than a month). This can significantly reduce the cost of terminating an employee’s employment, particularly if after successful completion, you use longer notice periods, for example three months. We still see some contracts that mention the probationary period but do not define its effect. Without a specific reference to the length of notice, the normal notice will apply, even though you terminate during the probation period.

Tip 3:   Decide on the length on a position by position basis

The probation period should be long enough for you to make up your mind about the employee and to give the employee a chance to deal with any concerns about their performance. Generally, you will be able to take your decision quite quickly when dealing with a junior employee, so you may have a shorter probation period for more junior staff.

Tip 4:   Define the effect of the probation period

Together with the short notice period, you can also decide to postpone the start of some company benefits such as private medical insurance or generous sick pay until the end of the probation period. We usually state that the disciplinary procedure may not be used during the probation period. Some employers may also state that although the employee will accrue holiday entitlement over the probation period, they will not be permitted to take holiday.

Tip 5:   Extending the probation period

We recommend that your probation period also includes a right to extend it. This would be used if the employee is not quite up to scratch but you think they will get there in time. This should be used carefully, so that you do not extend the probation period over an unreasonable amount of time or extend it with everyone as a habit.

Unless your contract provides for a renewable probation period, you cannot extend it without the employee’s agreement. In saying that, an employee given the choice between being dismissed or having the probation extended will usually chose the second option. Always explain why the probation period is extended and the specific improvement you expect during the extended probation period.

Tip 6:   Diarise the end of the probation period

One of the most common problems we see is where an employer forgot about the end of the probation period and then subsequently decided to terminate the employee’s employment. This can be avoided by making a note in your diary so that a week before the end of the probation period, you have a discussion with the employee. It is also a good idea to review the employee’s progress regularly through the probation period, so that any concerns are being addressed quickly and at the time they arise.

Tip 7:   Beware of discrimination or other claims

A probation period simply gives you the contractual right to terminate employment early. However, some statutory rights start on day one: the most common being the right not to be discriminated against, so no dismissing an employee because she did not tell you she was pregnant when you interviewed her. You should also be careful when dismissing people who complain; dismissal for asserting a statutory right is another day one right. Take advice if you are unsure.

Tip 8:   Have a meeting before dismissal

Employees appreciate being told what went wrong. Ideally you should start the meeting by explaining your concerns about why they are not doing the job to your standards and wait for the employee’s reaction. This will give you an opportunity to deal with any issues that could give rise to potential claims. For example, if you speak to your new employee and he tells you that he is being bullied by his manager because he is gay, it would be advisable to stop the meeting and to deal with the problem.

Tip 9:   Terminate or extend in writing

It will be more difficult for an employee to rewrite history if they did not react promptly to a letter explaining the reason for termination.

For more specific information or to discuss your requirements please call either Amanda Galashan or Julie Calleux at Employease on 0333 939 8741, or email us at info@employease.co.uk. This note does not constitute legal advice on any particular situation you may have.

© Employease: The Employment Practice Ltd 2017

Twitter: https://twitter.com/employease

Blog: https://www.employease.co.uk/viewpoint/

Web: https://www.employease.co.uk

Company registered in England Reg No: 2931940

Registered Office: 40 Woodford Avenue, Gants Hill, Essex IG2 6XQ

Share this article