Likewise, it allows employees to consider whether the role is right for them. While the hope is always that the employment relationship will be a good fit, sometimes things don’t progress as expected. But what should an employer do when an employee is not meeting expectations during their probation?
Understanding Probation Periods
The law doesn’t require employers to implement probation periods; however, many organisations incorporate them as a standard practice to assess new employees before making a longer-term commitment. Typically, the terms of the probation period are outlined in the offer letter or employment contract. The details should include:
- The ability of either the employee or employer to terminate the employment during the probation period
- The period of notice that should be given by either employer or employee during the probation period. This is usually one week’s notice but it would be wise for the employer to check whether there are any statutory minimum notice obligations.
- The requirement for any notice to terminate to be given in writing.
- Clarification that the employer can extend the probation period if additional time may help the employee improve.
- That the employer will confirm in writing when the probationary period has been completed successfully.
Although probation periods are usually three or six months, they can vary from employer to employer, depending on how long it’s thought the employee will need to fully learn the role and its requirements.
Process for managing an employee on probation
There are several steps to an effective probation management process.
Step 1. Set Clear Objectives
Outline specific, measurable objectives from the outset to ensure expectations are clear and to provide a basis for performance assessments.
Step 2. Monitoring
During the probation period, regular meetings between the employee and their line manager should be arranged to review progress, offer support in meeting their objectives and address any problems with conduct or performance.
Step 3. Conduct a Probation Review
At the end of the probation period, or sooner if there are serious concerns, conduct a formal review meeting. While there is currently no statutory right for employees to be accompanied, it is good practice to allow a colleague or trade union representative to attend if formal action is being considered.
Step 4. Decide on the Outcome
- Confirmation: Where performance is satisfactory, confirm successful completion in writing.
- Extension: If progress has been made but concerns remain, consider extending the probation period. Confirm the extension in writing, including clear objectives and timescales for improvement.
- Termination: Where it’s clear the role is not a good fit, the employer may decide to end the employment relationship. Before doing so, ensure all contractual and legal requirements have been met.
What’s Changing? The Employment Rights Bill 2024-25 and the “Statutory Probation Period”
The Employment Rights Bill 2024-25 introduces the concept of an “initial period of employment”. This is referred to in government documents as the “statutory probation period”. These reforms will have a considerable effect on how employers manage probation periods and dismissals.
Key Proposed Changes:
- Employers will have greater flexibility when dismissing employees for reasons of capability, conduct, statutory restriction or Some Other Substantial Reason (SOSR) relating to the employee.
- While the exact duration is still subject to consultation, government proposals favour a period of nine months. This would give employers a longer timeframe in which to assess suitability without full exposure to unfair dismissal claims.
- The government is proposing a “lighter-touch” dismissal process during the statutory probation period. This may involve holding a meeting with the employee to explain concerns. There is no confirmed requirement for written correspondence, though best practice will still suggest providing written confirmation to mitigate risks.
- While the proposed lighter-touch regime will reduce the procedural burden, it remains essential to document concerns and give employees an opportunity to improve. Employers should develop clear, transparent processes for dealing with underperformance from day one.
Why employers should start preparing now
Although the reforms have yet to take effect, they mark a substantial change in employment law, and prudent employers should begin preparations now. Important areas to focus on include reviewing employment contracts and staff handbooks, providing training for managers, strengthening recruitment procedures, enhancing performance management during probationary periods and adopting a more strategic approach to workforce planning.
How rradar can help
Our team of experienced employment lawyers can support your organisation in preparing for these important changes. Whether you need to update employment contracts, develop robust probation management frameworks or train managers, we can help ensure you remain compliant and minimise risk in your recruitment processes.
If you would like to explore tailored support in advance of the Employment Rights Bill reforms, please get in touch with our team.