The following guide for HR, managers and employers focuses on employee rights during probation. We look at how to manage probationary periods in the context of employee’s statutory and contractual rights, from setting targets and goals for new employees, as well as how to address any performance or conduct issues that may arise during the period of probation.
What is a probationary period?
Even though an employer may have invested a great deal of time and money in recruiting a suitable candidate for a job, they will only really be able to gauge whether or not they have the right person for the role once the successful applicant starts undertaking their actual day-to-day responsibilities.
As such, it is not unreasonable to require new-starters to work a probationary period before making them a permanent or fixed term member of staff. This period is primarily designed to provide the employer with some insight into whether or not the individual is capable of undertaking the job role for which they have been hired and, equally, that they are able to conform to the standards of behaviour expected of them and to fit in with the team.
However, it is important to remember that probation is not just about assessing whether the employee is right for the job, but also about whether the job is right for them. The reason being that you may need to invest heavily in training for that individual and, as such, you will need to feel confident that the employee is not going to leave having had significant levels of funding invested in them.
Not surprisingly, many employers are also reluctant to allow an employee to acquire or accrue enhanced contractual or statutory rights, if they are simply unsuitable for the job in the longer term.
Accordingly, the probationary period is about protecting your financial and business interests, ensuring that you only employ those individuals who are suited to, and likely to stay in, the role if this is offered to them on either a permanent or fixed term basis on completion of the probationary period.
There is no law determining the length a probationary period, although this will usually be for between three to six months. That said, in some cases, this period could be longer or even shorter depending on the nature of the role, for example, where the role is only temporary the period is often much shorter.
When implementing a period of probation, regardless of length, it is important to put in place some form of agreement, preferably in writing, as to the period of probation and the terms upon which the employee will be required to work throughout this period.
It is also important to set targets and goals during any probationary period so as to provide both parties with some form of reference point, or acceptable threshold, to assess the individual’s suitability for the role.
This could be done in the form of specific key performance indicators (KPI’s) to measure an individual’s progress, for example, the number of new contracts signed or qualified leads obtained, or by way of more general targets, such as receiving positive feedback from the employee’s line manager and co-workers.
Monitoring & managing performance
In order to effectively monitor and assess an employee’s performance during the period of probation, including any specific targets and goals that may have been set, employees should undergo regular reviews throughout this period.
This will help to provide a clear indication as to how that individual is progressing and giving both parties an opportunity to pinpoint any problems.
The mere fact that issues are raised during the course of any probationary period does not necessarily mean that the employee should be let go. It may simply be that there are some teething problems that need to be addressed, and adjustments need to be made, for example, by way of additional training.
Employee rights during probation: dealing with performance & conduct issues
It is not uncommon for all sorts of issues to arise during a period of probation in relation to the performance and/or conduct of the new employee.
The very nature of the probationary period is to provide an opportunity for these types of issues to come to light before you grant a new employee any fixed term or permanent contract of employment that will potentially entitle them to greater contractual rights within the workplace and, with the passage of time, greater statutory rights too.
The manner in which you deal with any issues during the period of probation will very much depend upon the nature and seriousness of the issue and employee rights during probation. In many cases, minor issues relating to underperformance or misconduct may be resolved informally, for example, by way of a simple chat or verbal warning.
In respect of more serious matters, you may want to consider the use of formal disciplinary proceedings and even the possibility of dismissal.
It is important to remember that even during probation, an employee will still have certain basic statutory rights, not least the right not to be unlawfully discriminated against or unfairly dismissed on grounds that are classed as ‘automatically unfair’. This includes being dismissed for asserting a statutory right, for example, taking leave for family reasons, including pregnancy and maternity, or taking leave for family emergencies or to care for dependants.
When taking disciplinary action against an employee, even an employee on probation, you should do so in a fair manner, not least given the possibility that any failure to investigate the matter thoroughly could result in the unnecessary loss of a potentially valuable employee, and could even undermine any possible defence to a claim made against you, for example, for an alleged automatically unfair dismissal.
As such, you should carry out any necessary investigations to establish the facts and do so without unreasonable delay. You should also notify the employee of the nature of the matter and arrange a meeting to provide the employee with an opportunity to put their side of the story.
Following the meeting, you will need to decide on what, if any, disciplinary action needs to be taken and notify the employee of your decision in writing.
There are various possible courses of action available to you, although where the matter is relatively minor and you are happy to make allowances for the employee’s inexperience or lack of knowledge, for example, in the context of workplace procedures, then a verbal or first written warning may suffice.
In contrast, where the matter is more serious, not least given the context that the employee is on probation, you may want to issue a final warning or even consider dismissing the employee for any poor performance or proven misconduct.
Probation & dismissals
In the event that you decide to dismiss an employee for poor performance or misconduct issues arising during the course of their probationary period, although you may decide against following a full disciplinary and dismissal procedure, including any right to appeal, you should always provide the employee with an opportunity to respond to any performance or conduct issues relating to their proposed dismissal.
You should also provide the employee with notification of your decision in writing, clearly explaining your reasons for so doing and retaining an accurate written record of any disciplinary investigation undertaken and what action has been taken in response.
The employee should be informed as soon as possible of the reasons for the dismissal, as well as the date on which the employment contract will end and the appropriate period of notice.
It is important to remember that although a minimum of two years service is usually required for an employee to claim unfair dismissal, thereby precluding the probationary employee from claiming that their dismissal was procedurally unfair or unreasonable, there is no minimum length of service for an automatically unfair dismissal or dismissal based on unlawful discrimination.
From day one of employment, regardless of any period of probation, an employee is entitled to any statutory rights that arise automatically, whereby the probationary period has no legal bearing on these rights.
As such, where you are dealing with disciplinary or performance issues during a probationary period, particularly where these matters are likely to result in dismissal, you will need to be able to demonstrate that the grounds for your actions were genuine.
Needless to say, you will be in a much better position to do this if you have carried out a proper investigation and given the employee an opportunity to explain their version of events, and you have a record of what steps have been taken prior to making the decision to dismiss.
Minimum notice period for employees on probation
The employee, even if dismissed during their period of probation, will still be entitled to a minimum statutory notice period. The legal minimum notice required to dismiss an employee is one week for any individual who has been continuously employed by you between one month and up to two years.
That said, if the contract of employment provides for longer then you must honour this enhanced contractual right.
The only qualification to the employee’s entitlement to a minimum statutory or contractual notice period is where an investigation has resulted in a finding of gross misconduct. In these circumstances you may be justified in summarily dismissing an employee, in other words, without notice or pay in lieu of notice.
Gross misconduct is an act that is so serious that it justifies instant dismissal for a first offence, for example, physical violence, indecent behaviour, incapacity due to either drugs or alcohol, theft or fraud, misuse of property, serious breaches of health and safety, or serious insubordination.
When dealing with an allegation of gross misconduct, even in respect of an employee on probation, it’s always advisable to undergo a full investigation and fair disciplinary process, so as to protect your interests and prevent the loss of a valuable employee who may be entirely innocent of the matter alleged.
Tips for managing probation periods
Avoid falling foul of employee rights during probation by:
- Deciding on the appropriate length for a probationary period from the outset
- Including a clear contractual provision to extend this period, where appropriate, outlining the special circumstances in which this can be done
- Determining the contractual terms that will apply during a probationary period but be aware that, from day one, employees on probation have the same statutory employment rights as other employees
- Ensuring that where an employee’s failure to satisfactorily complete the probationary period is connected to, for example, pregnancy or any other protected characteristic, that you do not discriminate against them because of this
- Ensuring that you follow a fair disciplinary or dismissal procedure, keeping an accurate record of your decision-making
- Complying with the statutory and contractual notice obligations when terminating an employee’s contract of employment
- Making payment in lieu for any unused holiday entitlement accrued during the period of probation in circumstances where you dismiss the employee
- Confirming in writing where an employee has passed their probationary period and when any enhanced contractual terms take effect
When deciding on a probationary period and the terms under which an employee on probation will be required to work, you may impose less favourable contractual terms than those that the employee will benefit from once this period has come to an end.
However, you should always make these terms clear in writing. Moreover, any such terms must not take away from any employee rights during probation that arise as a matter of law. In particular, an employee will be statutorily entitled from day one to certain minimum rights, including the right to the national minimum wage and a statutory minimum notice period.
Further, if you are wanting the flexibility to extend the period of probation to allow you to continue to assess the employee’s performance or conduct, you should again set this out in writing prior to the commencement of this period.
While the probationary period provides the opportunity for both the employer and employee to gauge the fit for the role, employers are advised to proceed with caution when dealing with performance and conduct issues during the probation period. While employee rights during probation are limited in comparison to those who have ‘passed’ this phase, there are steps employers should take to ensure they do not fall foul of their obligations or of the employee’s rights, particularly where there may be allegations of discrimination, as this can render a dismissal automatically unfair and give rise to a tribunal claim.
DavidsonMorris are employment law and HR specialists, working with employers to provide ongoing guidance and advice on issues such as conduct, performance management and disciplinary action in relation to new employees.
If you have a question or need advice on any aspect of workforce management, contact us.
Employee rights during probation FAQs
What are my rights while on probation at work?
Employees on probation may benefit from a number of rights and entitlements from day one of employment, including national minimum wage, statutory sick pay, time off work in certain circumstances and protection from unlawful discrimination and automatically unfair dismissal.
Can you claim unfair dismissal while on probation?
By law, it is unfair if you are dismissed because unlawful discrimination or because of an ‘automatically unfair’ reason, in which case you can claim unfair dismissal.
Last updated: 3 January 2022