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Probation Periods Overview

What is a Probation Period?

A probationary period is a tool for employers to use to assess whether an employee is suitable for the role they are employed to perform. Put simply, it is a specified period of time during which the employer has the opportunity to assess the employee. A probation period is almost always advisable. It should be set out in the contract of employment itself and may also form part of a separate policy, for example see Probation Policy [P6.01].

The length of the probationary period should be decided on a case by case basis taking into account the nature of the employer and the role in question to ascertain what period of time would be reasonable to fully assess the employee’s performance of the role. For example, if a role includes some duties and tasks that are done on an infrequent basis it will be desirable to ensure that the original probation period allows for all aspects of the role to have been performed before the probation periods comes to an end. Probation periods of 3 or 6 months are relatively common.

Although the probation period itself does not automatically create any special status of the employment relationship it can be used to expressly alter some standard terms which are deemed to apply only during the probation period itself. For example, it is very common for employers to apply a short notice period (subject always to statutory minimum notice requirements) during probation periods and a standard notice period after successful completion of probation. Employers may also want to make certain benefits dependant on successful completion of probation to avoid having to set them up from the outset of employment.

Using Probation Periods Effectively

Structure

To gain the most from a probation period employers should structure the period to allow them to genuinely assess the employee’s suitability for the role. This will generally involve monitoring absence, attendance, timekeeping, conduct and performance.

It is often useful to pre-arrange progress meetings at intervals during the probation period and use these meetings to set and review specific objectives, targets and aims. Feedback can also be given to the employee and they will then have had opportunity to improve and the employer can genuinely assess whether they can take the feedback on board and therefore whether or not they are suitable for the role.

It is not necessary to wait until the end of a probation period to make a decision on the employee’s suitability for their role. If it is clear from an early stage that the employee is unsuitable then it may be preferable to terminate employment sooner than the end of the probation period, the pre-planned progress meetings will assist with this by getting managers to turn their minds to suitability periodically rather than just at the end of the probation period.

Diarise

It is important to diarise the end of the probation period so that a week or so before it expires an assessment of suitability can be made. All too often employers miss the opportunity to use probation periods effectively by allowing the probation period to simply expire without any assessment taking place and therefore the probation period is essentially passed by default.

Where the probation period expires without being specifically extended it will be deemed to have been successfully passed by the employee. This can have knock on effects for any contractual terms that are dependent on successful completion of probation period such as notice periods and enhanced contractual benefits.

It is good practice for employers to specifically confirm successful completion of probation periods to employees to avoid any uncertainty. This practice will also assist to prevent a culture of probation periods being deemed to be passed by default which demonstrates that they are not being used effectively.

See template letter Written Confirmation of Successful Completion of Probation [SL6.01].

New Employees

A period of probation is most useful in relation to new employees who are often unknown and untested. If they are not suitable for the role then the employment relationship can often be terminated on short notice (if the contract allows for short notice during probation) and with relatively low risk. The employee will not have the necessary 2 years’ qualifying service to bring an ordinary unfair dismissal claim.

Existing Employees

Probationary periods can also be applied for existing employees who have been redeployed or promoted to a new role. The employee must be made aware that a probation period applies to their new role and that they must satisfy the employer of their suitability for the role before the contract is affirmed.

However, it is very important to note that where an employee has more than 2 years’ continuous service they have the ability to claim unfair dismissal if they are dismissed (whether during a probation period or not) and therefore the dismissal must be for a fair reason and after following a fair procedure.

Extending Probation Periods

In some cases employers may need longer to assess the employee’s suitability for the role than was envisaged when the probationary period was originally set. It is therefore important to reserve the right to extend the probation period to allow further time to assess suitability.

It is only possible to unilaterally extend a probation period where the employer has the contractual right to do so. Any extension (including the circumstances where it can be made and the length of time that it can be extended for) must be within the circumstances set out in the contractual right to extend.

Where there is no contractual right for the employer to unilaterally extend the probation period it may be possible for the employer to agree an extension with the employee. This would essentially be the employer inviting the employee to agree to an extended probation period as an alternative to dismissal due to an unsuccessful original probation period. Any such agreement to extend the probation period should be evidenced in writing as a change to contractual terms and conditions and signed by the employee to confirm their express agreement.

See template letter Extension of Probation Period Letter [SL6.02].

Fair Dismissals during Probationary Periods

An employee with at least 2 years’ continuous service with their employer will be able to claim unfair dismissal in the Employment Tribunal if they have been dismissed unfairly. An employer defending a claim for unfair dismissal will need to be able to show that:

  • The principle reason for the dismissal falls within one of the categories of potentially fair reasons for dismissal (conduct, capability/qualifications, redundancy, breach of statutory duty or restriction, some other substantial reason);
  • The employer acted reasonably in all the circumstances in treating the reason as sufficient to justify dismissal, including the requirement to adopt a fair procedure before taking the decision to dismiss. This is often known as the range of reasonable responses test.

It will be common (but not always the case) that employees who are still within probation periods will have insufficient service to be able to bring a claim for ordinary unfair dismissal. This makes it possible for employers to accelerate a dismissal by following a reduced procedure. The most common reasons for dismissal during or at the end of the probation period are conduct or performance (capability). For details on a reduced disciplinary procedure, for example, see Dismissing Short-Serving Employees – Disciplinary [FS5.04]. The fact that an employee has insufficient service to claim ordinary unfair dismissal does not mean that the dismissal is necessarily low risk as other claims without qualifying service requirements (such as automatic unfair dismissal claims, whistleblowing or discrimination) may be possible. Legal advice should be sought before making a decision to dismiss an employee due to an unsuccessful probation period.

See Notification of Probationary Review Meeting – Potential Dismissal [SL6.03] and Letter of Dismissal during Probation Period [SL6.04].

Discrimination Issues

It would be unlawful discrimination to treat an employee less favourably due to a protected characteristic. For example, it would be discriminatory to dismiss an employee at the end of a probation period due to them being pregnant/disabled/gay/ethnic minority/etc. For full details on Discrimination see Discrimination [FS72].

A particular issue relevant to probation periods is what employers should do when faced with absences during the probation period, especially if these absences mean that the employee has not been able to prove their suitability for the role during the original probation period. If the absences are related to a disability or maternity leave, for example, it would be discriminatory to find that the employee has not successfully passed the probation period due to the absences. The better approach would be to consider extending the probation period to allow further time to assess suitability due to the absence during the original probation period.

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.