Although there is no statutory requirement to include probationary periods in an employment contract, this process is recommended to monitor a new or newly promoted employee’s performance. There is no set period that a probation should be for and therefore it should be based on the seniority, skill set and performance required for the role. For example, a junior role may require a shorter probation period compared to a senior position, whereby the employee may need to prove their leadership and influencing skill, which may take longer.
What must managers be aware of?
Managers must effectively manage their employees’ performance through having regular performance reviews throughout their probation period. It is important for the employer to show that they took reasonable steps to appraise the employee on probation and made every effort to determine his suitability (Post Office v Mughal [1977] IRLR 178, [1977] ICR 763, EAT).
I have completed regular reviews but there’s still no improvement?
If an employee is unable to meet the required standard of performance, having provided relevant training and opportunity to achieve the standards required, the outcome may result in a dismissal due to an unsuccessful probation period. However, if at the end of the employee’s probationary period, you believe you have not given the employee the opportunity to improve or there are other mitigating circumstances that may have caused the employee to not achieve the required standard; then you may extend their probation by outlining areas for improvement but this should be a final resort. It is crucial that all probationary review meetings are documented in writing and saved on an employee’s file.
Employers must not extend an employee’s probation on more than one occasion as the tribunal would not see this as reasonable. This would be seen as allowing the poor performance for a prolonged period and deemed as acceptable.
It is important to note that employees under a probation period have the same rights as an employee with no probation period. However, it is the employer’s decision as to whether they differ the Terms outlined within their employment contracts during the probation period.
What are the potential claims that may arise if you are not following a robust probationary procedure?
In certain situations, two years’ length of service is not always required to claim automatic unfair dismissal. For example, dismissal in relation to pregnancy.
If an employer dismissed in breach of the employment contract, by failing to follow a contractual procedure or by not providing the correct notice period, it may lead to a wrongful dismissal claim.
If an employee believes they have been discriminated against, there is a possibility of a discrimination claim.
An employee within their probation can ‘whistleblow’ and raise their concerns about wrongdoing within the company with a risk to others and this will present a claim regardless of their length of service.
So you may ask, how can we stop the possibility of these claims arising?
Having a clear and robust policy and procedure in place would help tackle any potential claims from arising. Qdos can help you by providing a bespoke service to ensure your policies and procedures remain compliant. Please don’t hesitate to contact our Chamber Support Services for help: 01455 852037
