Six tips for effective probationary periods

While there is nothing in law that requires employers to use probationary periods, they are commonly used when an employee joins the organisation and are useful way of assessing performance in a given timeframe. We set out six tips for implementing them effectively.

1. Probationary periods can help avoid performance issues later

There is no statutory framework for probationary periods – it is down to the employer to decide whether or not to use them and how long they should last.

A probationary period can focus the minds of the employer and the employee to make sure that the new employee is given the support necessary to be able to perform to the required standard.

2. Do not wait until the end of the probationary period before addressing performance issues

Employers should hold regular review meetings with the new employee during the probationary period to give feedback and listen to any concerns the employee may have. If there are performance issues, a plan should be put in place to help the employee to improve.

The probationary period can be extended in appropriate circumstances, but employers should avoid having to extend the period simply because issues have not been dealt with earlier.

3. Consider contractual rights during the probationary period

While probationary periods do not affect employees’ statutory rights, it is open to employers to provide for different contractual rights for employees during their probationary period. For example, the employer could withhold certain contractual benefits until the employee has successfully completed the probationary period.

4. If it is clear that the employee is not suited to the job, termination before the end of the probationary period is an option

Employees should be given a fair opportunity to reach the required standard of performance and conduct during the probationary period, but in some situations it will be clear that the employee will not be able to do so, and dismissal before the expiry of the probationary period may be appropriate. The employee will be entitled to notice, or a payment in lieu of notice, in the normal way.

5. Employers should follow a fair dismissal procedure even if the employee does not have the qualifying service required for unfair dismissal

It is unlikely that an employee on a probationary period will have the two years’ service required to claim unfair dismissal, unless for example they have transferred from a different role with the same employer. However, employees can claim discrimination and unfair dismissal for an automatically unfair reason from day one of their employment. Employers should, therefore, follow a fair dismissal procedure and be able to show evidence of this if the reason for the dismissal is challenged.

The employer must ensure that it follows any contractual disciplinary procedure.

6. Take action to dismiss employee or extend the probation before the probation period has expired

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If the probationary period expires without the employer taking action to dismiss the employee or to extend the period, the employee will be presumed to be confirmed in the role, and will therefore be entitled to any extended contractual notice period that applies on passing probation.

Case report: Notice rights on expiry of probationary period