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Probationary Periods – Why Bother?

A probation period is a well-known tool that is utilised at the beginning of an employment relationship, which allows the employer to evaluate a new employee’s performance and suitability for the role, and equally for the employee to assess whether the job is right for them.

Having a probation period in place is not a legal requirement and there are no set rules as to its length. For this reason, some employers choose not to have probationary periods, or as we frequently see, they contractually have them in place, but managers don’t actually implement them effectively (or at all) in practice.

It is easy to understand why when, more often than not, managers are short on time with multiple competing demands to juggle, and a quick risk-benefit analysis can put probation tasks at the bottom of the priority list. This is usually the result of a reactive mindset and the probation period end date being viewed as only a soft deadline for addressing any performance and/or conduct issues. A manager will instead often consider the two-year continuous service date, when the employee reaches the qualifying service necessary to bring an ordinary unfair dismissal claim, to be the actual hard deadline that they need to worry about.

This can however, for multiple reasons, be a missed opportunity and misguided approach.

A manager should keep in mind the risk of other claims, such as discrimination claims, that can be brought without a minimum period of service.

An employee is perhaps less likely to bring this type of claim if they feel that they have been treated fairly and a well-executed probation period can assist with this. The reason being that regular objective feedback and progress updates help to manage an employee’s expectations before a final decision on their continued employment is reached. The alternative, where communication has been lacking or dishonest, is that the employee feels blindsided or jumps to their own conclusion as to the reason why they’re contract has been terminated and is then driven to explore their options for legal action.

Additionally, carrying out a probation period and keeping associated records ensures the manager has a paper trail evidencing their reason for terminating employment, if the employee is not able to meet the requirements of the role. This may help in demonstrating to an employment tribunal the reason for dismissal was not discriminatory if this later became necessary.

As I’m sure you will be aware, Labour has pledged to expand the basic rights of workers from day one, including ending the requirement for workers to have two years qualifying service to bring an ordinary unfair dismissal claim.

This change will likely affect how employers wish to handle probationary periods, and they may suddenly shoot up the priority list; particularly where Labour have indicated that one of the valid reasons for fair dismissal will remain to be a probation period with fair and transparent rules and processes.

Whilst we don’t yet know the exact detail of what this change will entail, now could be a good time to review whether your probationary practices would stand up to scrutiny in an employment tribunal, and to set about embedding any necessary improvements.

Having effective probation periods is of course not just about minimising exposure to legal risks. The clear communication that regular and structured probation meetings promotes is key to a successful employment relationship.

When a manager takes a pro-active approach and commits their time and energy to undertaking a meaningful probation period with an employee, they are likely to reap the reward.

Probation meetings give managers the opportunity to:

  • be clear on the requirements of the role from the outset;
  • give positive and constructive feedback to keep the employee motivated and on track;
  • ask the employee if they require any support, resources or additional training to assist them;
  • build a working relationship and rapport with their employee; and
  • address any issues quickly before they escalate or become engrained bad habits.

Essentially in the probation period the manager is equipping the employee with the tools they need to thrive in their new job role, and in doing so the employee will feel welcomed, valued and supported and therefore more likely to want to perform well and stick around.

As the saying goes, the grass is always greener where you water it.

Whether you are motivated by the potential legal risks, or wanting to give your employees the best prospects of succeeding in their role from the outset, or a combination of both, it could be the ideal time to consider if you are utilising your probationary periods to their full potential in practice, or if you don’t use them whether you should be.

If you have any questions in relation to this article or would like any advice, documentation or training on probation periods, please feel free to get in touch with a member of our team.

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.


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