The Right – and Legal – Way to Use a Probation Period in the UK
It’s unsettling to realise you may have made a poor hiring decision.
Perhaps the person is proving to be very different from how they appeared in the interview. Or maybe they claimed to have more skills and experience than they actually do.
It’s possible that they’re not very capable in the role, or that they’re not quite right for your company – which is especially important if you’re a small business where everyone needs to get along.
Probation periods (or probationary periods) can help in this situation.
But what exactly are they? What is the proper way to use them? And, as an employer, how can you make the most of them without getting into legal trouble? These are some of the issues we are going to explore here.
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Probationary Period: A Basic Definition
A probationary period in the UK – the definition varies in other counties – is a period of time at the beginning of a job when an employee can be sacked with little or no notice if they are found to be unsuitable for the position. Any new employment contract will almost always include a probation period, which is usually three months long.
Probation periods are important because they allow employers to ensure that they’ve made the right hiring decision and to act more quickly if a new hire isn’t up to the task.
This lowers the cost of keeping someone who is unqualified for the job on staff and allows them to be replaced more quickly, minimising the disruptions to your company and to the individual in question’s career.
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Employment Law and Probation Periods in the UK
There is no specific UK employment law that covers probation periods.
However, if you include the terms of a probationary period in your employment contract, it becomes legally binding.
It’s also important to remember to follow the Equality Act 2010 during the probation period, and to make sure that the reasons for a dismissal are not discriminatory, even if it’s during the probation period. You’ll need to make sure you have documented evidence of this, just like you would with any other dismissal.
Formalising a Probation Period in the UK
Because there are no legal requirements for probation periods, if you want to use one, you’ll need to include a clause in your employment contracts that defines your probationary terms and makes them contractually binding.
This clause should include:
- What is the length of your probationary period?
- Are there any terms regarding notice periods?
- That you have the option to extend your probation period at your discretion
Probation periods are typically three months long, though businesses may choose to extend them to six months or even longer in some cases.
The length of your probation period is usually determined by the nature of the job, how long you think it’ll take an employee to grasp the main responsibilities, and how long you think it’ll take you to decide whether they’re right for the job. In some cases this may be more than three months, especially if it’s an unusual or very challenging role.
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Managing an Employee on Probation
Even the best people can struggle without good management and the right support, so it’s critical to take steps to help you get the best possible sense of the person’s ability.
Make use of a well-thought-out induction strategy.
The better your induction, the faster a new employee will become familiar with your company’s processes and goals, as well as the company’s behavioural norms.
Make sure your expectations are clear.
Outline your employee’s responsibilities early on, so they are aware of what is expected of them.
Set simple goals.
Setting goals will give you a benchmark against which to measure your new hire’s progress. However, make certain that these goals are attainable. Remember that the employee will need time to learn the ins and outs of your company.
Take weekly notes and reflect on the employee’s performance.
It’s useful to consider how the employee performed each week, especially during the first month. Making a written note of your thoughts will also provide you with documented evidence of any problems that emerge.
Schedule regular meetings with the employee.
Keep in touch with your new hire on a regular basis to discuss their progress and ability to meet your expectations. After each meeting, send an email to the employee with a summary of your discussion to ensure that they have a clear understanding of the expectations and next steps.
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Any concerns should be communicated as soon as possible.
Although it may be difficult, communicate with your employee as soon as possible if they are not meeting expectations. You’ll be giving them the best chance possible to try to change things if they can.
Make a list and check it twice
It’s critical to keep track of your probationary employee’s progress and concerns throughout your probation period in writing, so that you can back up any decisions you make during or at the end of the probationary period.
Employee Rights During a Probation Period in the UK
Employees on probation have the same legal employment rights as those who have completed their probation and are still in their first two years on the job.
This means they are entitled to the national minimum wage, statutory sick pay, family-related leave, and statutory notice, as well as time off in accordance with the Working Time Directive.
They also have the right to be protected from unjustified dismissal and unlawful discrimination. As a result, it’s critical to remember that if you’re terminating a probationary employee, you’ll need evidence to show that your reasons for termination are reasonable and nondiscriminatory.
You must also make reasonable accommodations for a probationary employee with a disability, in accordance with their right not to be discriminated against unlawfully because of their disability.
Although employees on probation have the same statutory rights as other employees, some employers choose to hold off on providing certain (non-statutory) benefits, such as enhanced sick pay, until the employee has successfully completed their probation period.
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What are the Notice Requirements During a Probation Period in the UK?
Both the employer and the employee must give notice during the probation period according to the terms of the employment contract.
This must be at least the statutory one-week notice period after the first month of employment.
This means you are not required to give notice during the first month of your probationary period unless your employment contract states otherwise.
Dismissing a Probationary Employee
In accordance with the clause in your employment contract, you have the power to dismiss an employee at any time during their probationary period.
After raising concerns with them, you should give them a period of time to improve before dismissing them.
The amount of time you give them will be determined by the severity of their failure to meet expectations and whether or not there are any signs of improvement or attempts at improvement.
If you still think the employee isn’t right for the job, schedule a formal probation review meeting with them.
Conducting a Probation Review Meeting Fairly (and Legally)
If, despite informal discussions in which you have raised your concerns and clearly defined your expectations, an employee still does not appear to be right for the job, you should invite them to a probation review meeting to discuss terminating their contract.
Review your notes from your catch-ups with your new employee to prepare for the meeting, and make sure you have specific examples of where they have failed to meet required standards.
- Begin by stating the purpose of the meeting: to evaluate performance and conduct during the probationary period.
- Also, let the employee know that he or she will be able to respond to what you say.
- Provide specific examples of how the employee has fallen short of expectations.
- Be as specific as possible, comparing and contrasting their performance to what was expected.
- Communicate what you’ve seen in a straightforward and honest manner, without sounding accusatory.
- Encourage the employee to comment on what you’ve observed. Keep an open mind because there could be a valid reason for their difficulties.
- Allow yourself time to make a thoughtful decision by adjourning the meeting. At this time you can choose to extend the probation period to give the employee more time to demonstrate their worth or formalise the process to terminate them.
Covering Your (Legal) Back
There are two important steps to remember when dismissing an employee who is on probation:
Give Proper Legal Notice
If you’re terminating a probationary employee, make sure you give them enough notice. You might want to fire them on the same day as the meeting, in which case you’d pay them in lieu of their notice period.
This should be in accordance with the probationary period’s contractual notice period, as specified in their employment contract.
As previously stated, even during the probationary period, this contractual notice cannot be less than the statutory notice period, which requires a minimum of a week’s notice if the employee has worked for more than a month.
Give the Employee a Chance to Appeal
Providing an opportunity to appeal during the probationary period is not required by law, but it is recommended because it will highlight any potential discrimination claim that the employee may intend to make.
This should give you the opportunity to resolve any internal conflicts and avoid an Employment Tribunal claim, something no employer wants to have to face, even when they believe they are in the right.