The probation period allows the employer and employee time to decide if the employment arrangement is working for both parties.
Employers should use this time to support the employee with settling in while assessing the employee’s performance in their new role. Employees can use this time to decide if the job and the organisation are right for them.
At the end of the designated period, there should be a final probation review meeting when the manager and employee discuss the employee’s performance and progress and identify whether any specific support is required and whether the employee will be ‘kept on’ by the organisation on a permanent basis.
Even during the probation term, employees are protected by some, albeit limited, rights, which employers will need to be mindful of when managing the probation period and review.
Probationary reviews & employment contracts
The terms of the probationary period should be included within the employment contract. The following details should be specified:
- how long the probationary period will last;
- whether the probationary period can be extended;
- under what circumstances the probationary period can be extended; and
- whether the employee can appeal if their probationary period is not completed.
In practice, employers would typically provide detailed guidance on the probationary procedure in the Staff Handbook, building on outline terms within the employment contract. This should be used as a reference for line managers conducting probationary reviews and for employees on probation to understand the process, what is expected of them, and the consequence for failing to meet the required standards.
This could include, for example, who will be in charge of holding the review sessions, how often they will be held, and how the employee will be notified that their probationary time has ended. It should also explain how an employee can appeal a decision to fire them after a failed probation period.
The employment contract should also clarify which elements of the contract will not apply during the probation period, for example, providing a shorter notice period (for example, one week rather than one month), statutory (not enhanced) sick pay, and no access to private healthcare schemes or other benefits.
When to conduct a probation review meeting
In most cases, probation reviews should be conducted during and at the end of the probation period. These should be in addition to regular, less formal discussions and ‘check-ins’ between the manager and the employee.
There is no rule specifying the length of a probationary period, but there is an expectation that the employer acts reasonably in this regard. Generally, probationary periods last either three, six or twelve months, depending on factors such as the type and seniority of the role.
If the role’s probationary period is two months, it makes sense to conduct a meeting after one month, then another at the conclusion. If the probationary period is six months, you may want to give the employee more time to adjust to their new position before examining their progress, such as after three months. If the probation period is 12 months, you may look to conduct more than two reviews.
Whatever the duration, it should be made clear to the employee at the start of the employment relationship and the length of the probationary period should be stated within the contract of employment.
Importantly, you should be careful not to miss any deadlines. If your employee is on a three-month probationary period and you do not hold a review meeting at the end of that period, the employee could reasonably conclude that they have completed the probationary period and are entitled to any additional contractual benefits gained as a result.
How to conduct a probation review meeting
Managers conducting probation reviews should be trained to ensure they follow the organisation’s procedure and are aware of risks relating to unfair dismissal, discrimination, reasonable adjustments and the options open to them at the end of the review which could include signing off the probation period as successfully completed, extending the probation period or dismissing the employee.
From the beginning of the employment relationship, the employer should set and communicate the measurements and targets of the role to the employee. This could relate to areas such as technical skill and capability, and contribution to the culture and ethos. The probation should be a discussion of the progress to date against these measures.
If problems arise during the probationary period, the probation review is critical for raising and addressing the issues in a structured way through formal feedback, and where employer support and new targets and objectives can be discussed.
It’s therefore important to be prepared for the meeting; review the employee’s work prior to the meeting to make an assessment of performance and identify areas for improvement and take feedback from colleagues to ensure you have a full picture of the employee’s performance.
If you are dissatisfied at the end of the probationary period and are considering ending the employment contract, a compliant probation review process should provide the framework for fair dismissal.
It is critical that the probation meeting is documented. It can be helpful to provide a template pro forma for managers to ensure they are discussing and capturing the right information. The completed form should be provided to the employee later for their own reference and records.
Questions to ask at a probation review
The following questions can be helpful to ask the employee during the probation review meeting:
- How do they think they’re doing in the role? Are they enjoying it? Is the job what they expected it to be?
- What do they understand the expectations of their role to be?
- How would they describe their performance in the job?
- Has anything negatively impacted your performance during the probation period?
- Do they require any training or support to develop particular skills or capabilities?
- In turn, the manager should provide feedback on any areas where they believe they can improve. These should be explained in as much detail as feasible and in a constructive manner. Feedback should be specific about what the employee needs to do to improve, including examples if possible. It should be motivating so that the employee does not become discouraged.
- It’s also crucial for the line manager to remember that the probation meeting is not part of a disciplinary procedure. The goal should be to assist the employee in succeeding; it’s possible that all they need is additional time in the role to do so.
- At the conclusion of the meeting, the manager should advise the employee when they will meet again and if required, set improvement goals for that date.
What happens if the employee fails to complete their probationary period?
Employees may fail to meet the required standards during their probationary time, for example, due to poor performance in the role, poor conduct (eg consistent lateness), or excessive sickness absence rates.
Your approach should depend on the particular issue.
Competency and/or conduct
If an employee fails to perform the function to the appropriate standard, despite support provisions being put in place and following earlier performance conversations, you must explain your concerns and provide evidence in support. You should then allow them the opportunity to give their input and to respond to your points.
If you are still not satisfied and are looking to dismiss the employee, you should inform the employee of the dismissal and confirm the decision in writing, stating the reasons why they failed the probationary period, how much notice they will receive, when their employment will end, and their right to appeal. The letter should also state the date for submitting the appeal and who it should be sent to.
Sickness or disability
In relation to sickness absence and disabilities, you should examine two options before moving to dismiss the employee. First, determine whether the illness was caused by the job. In that case, you should consider if there are any adjustments you can make to remedy the issue and avoid others becoming affected in the same way.
The second step is to determine whether the employee has a disability. Where this is the case, you may need to consider making reasonable adjustments to allow them to continue working without taking so much time off. Adjusting an employee’s work hours, providing them with equipment so they may work from home, or providing them with a parking place near the office, for example, could all improve the employee’s overall performance. Dismissal on the grounds of a recognised disability could be deemed unlawful discrimination.
If an employee has been absent for an unacceptable period of time during their probationary term, you may dismiss them during or at the end of the period for this reason, though it is recommended that you first consider providing a probationary period extension. To explain your decision, you should meet with the employee as mentioned above. A letter should be sent stating your reasoning and, as previously said, allowing them to appeal.
Other unlawful grounds
If an employee is fired at or near the conclusion of their probationary period, they are unlikely to meet the two-year qualifying time for bringing an unfair dismissal claim. However, regardless of how long an employee has worked for you, the law will consider some dismissals to be automatically unfair. Pregnancy-related reasons, availing of a statutory right (for example, the right to be paid the National Minimum Wage), and whistleblowing are examples of automatically unfair grounds for dismissal.
You can still dismiss an employee who fits into one of these categories, but the dismissal must not be because of an automatically unfair reason. If the employee files a claim with the Employment Tribunal alleging that you dismissed them on one of the automatically unfair grounds, you would need to show that this was not the case and provide an alternative, lawful ground for dismissal.
Employees with ‘protected characteristics,’ such as gender, ethnicity, marital status, and sexual orientation, are likewise protected from being dismissed because they have, or are perceived to have, or are associated with someone who has, a protected characteristic. If challenged at Tribunal, the employer would have to show that the employee’s dismissal during the probationary period was not due to their protected characteristic(s) and provide evidence of the actual lawful reason.
Extending the probationary term
When an employee fails to meet the requirements of the job, it is generally advisable to extend the probationary period. The option to extend the probation term has to be included in the employee’s employment contract and the circumstances under which this will occur should also be provided, even if only in broad terms, such as where there is a need for more time to evaluate an employee’s performance.
If you do decide to extend the probation period, you should confirm the decision to the employee in writing, stating why you have decided to do so and how long the extension will last.
Dismissal during the probation period
Only after two years of service does an employee have protection from unfair dismissal. However, if you are looking to dismiss an employee during their probation period – that is, before they attain the protections of two years’ continuous service – it is strongly recommended that you follow the usual dismissal process to avoid any potential complaints. This helps to avoid issues where the dismissal could relate to automatic unfair dismissal, unlawful discrimination and breach of contract, where the employee is protected regardless of their length of service, from day one of their employment.
Is there a minimum notice period for probation dismissal?
Employers have to provide statutory notice periods during probation, ie one week’s notice if the employee has worked for more than one month but less than two years. The employer may also opt to provide longer notice periods. In either event, the employer should set out the applicable notice periods within the employment contract.
Can an employee claim unfair dismissal during the probation period?
In most situations, employees on probation are generally unable to claim for unfair dismissal as they must have served for two years to have attained that right. However, employers are advised to tread with care as a number of risks may arise. For example, the employee may be entitled to make an unfair dismissal claim if the actual cause for their dismissal is not that they failed their probationary period, but rather that it is for a reason that is found to be automatically unfair (such as discrimination based on a protected trait).
Need assistance?
The HR experts at DavidsonMorris are available to provide help on all elements of workforce management, including performance reviews and probation management. Speak with one of our specialists for assistance and guidance on a specific issue.
Probation review FAQs
Why are probationary reviews important?
Probationary reviews are the opportunity for the employer to discuss a new employee's performance and support needs after the initial period of employment, while the employee can provide feedback on their experience and expectations. At the end of the review, the employer may decide to dismiss the employee.
Can you dismiss someone after probation period?
Depending on the specific circumstances, the employer can dismiss an employee on probation by giving at least one week's notice. However, to manage legal risks, if the issues relate to poor performance, employers are advised to first extend the probation and explore ways to support the employee to do their job effectively before opting to dismiss.
Last updated: 30 November 2021
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
