Often, employers will have a probationary period tucked away in their employees’ Contract of Employment, but they will be unsure of how to use it effectively.
Here are some key things employers and managers need to know.
Draft probationary periods carefully
It is important for probationary periods to be well drafted.
Typically, the employee’s contract will say that in the first X months, the employee will be subject to a probationary period where their performance and conduct will be monitored and assessed. If they are deemed up to scratch, their continued employment will be confirmed and if it isn’t, their probationary period will be extended. It will also state the notice period should either party wish to terminate the employment relationship.
The length of the probationary period will generally vary between one month and six months. You may be able to assess someone’s ability and competence for a more junior role in shorter amount of time, but require more time for senior roles.
Employees on probationary periods do have rights
There is a dangerous assumption that an employee does not have any rights until they have successfully completed their probationary period. This is not true! Statutory rights will depend on length of service, not whether they have passed their probationary period.
For some rights, the employee must have worked for you for a specific length of time, for example, an employee must have 26 weeks’ continuous service to have the right to request flexible working. For other rights, employees will receive them from day one of employment, for instance, annual leave accrues from day one.
Often, employers will say that employees are not entitled to contractual or company benefit schemes until they have completed their probationary period.
Keep things under review
During the probationary period, you should assess your employee to ensure that they are reaching the standards required. You should also give them any advice and guidance on what they can improve on. It is advisable to have a mid probation review to explain in what areas they are progressing well and what areas they need to work on.
Be careful with dismissal
If the employee does not successfully pass their probation, you may need to terminate the contract.
In most cases, an employee needs to have at least two years’ service to be able to submit a claim of unfair dismissal to an Employment Tribunal. There are some exceptions to this general rule. For example, if the main or sole reason for dismissing an employee is that they are pregnant, the dismissal will be considered automatically unfair and the employee’s length of service is irrelevant.
The notice period cannot be shorter than the statutory minimum. An employer must provide at least one week’s notice if the employee has worked for the employer on a continuous basis for one month or more, but less than two years.
We recommend that you always seek legal advice from your Ellis Whittam Employment Law Adviser before dismissing an employee within their probationary period.