Termination: Probationary periods – why bother?

A probationary period can give both the employee and employer the opportunity to assess whether they are a good fit for each other. If however, there is some doubt about the employee’s suitability, or it becomes clear that they do not have the skills required to undertake the role to the required level you may be considering dismissing an employee during their probationary period.

Most contracts of employment contain probationary period clauses. If you have such a clause, do remember to set out how the probationary period will operate and how long it will last (typically they last 3 to 6 months) and do include a provision for the probationary period to be extended.

It is worth remembering that probationary periods have no legal significance and are an internal process to assess suitability for employment.   Don’t wait until the end of the probationary period before addressing any concerns you may have relating to performance or conduct.  Particularly if you are considering the termination of an employee.  Many employers assume that they can simply terminate an employee’s employment during their two years’ service without explanation.  However, it is still important to follow a process before dismissing someone, even if they are in their probationary period. 

Why?  There are circumstances where the employee does not need to have worked any particular length of service to bring a claim of unfair dismissal to an employment tribunal.  For example, an employee may allege that the dismissal was an act of discrimination or whistleblowing, in which case they can bring a claim for unfair dismissal to an employment tribunal.

Here are our top tips:

  1. Plan for the probationary period
    1. Gather feedback from other managers
    2. Reflect on the work they have completed
    3. Use a probationary review form. This can help to structure your meeting and can be used to agree any action points, as well as gain feedback from the employee on any challenges they have faced
    4. If there are concerns about the employee’s performance or conduct then make the employee aware of this by providing evidence and then agree measures to put into place that will help the employee to improve.
  2. Confirmation
    1. After the probationary meeting, put the outcomes into writing for confirmation
    2. If you are extending the probationary period, make the required standards clear i.e. when the next review meeting will be and confirming the possible outcomes of not accomplishing action points.
  3. Termination
    1. In the event that you decide to terminate the employee’s contract, confirm the reason for termination in writing. In the event that a claim is put forward to an employment tribunal, and you can produce paperwork from a dismissal procedure, setting out the reasons for the dismissal together with the evidence will help an employer’s defence at an employment tribunal.

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This blog has been prepared for general guidance on matters of interest only, and does not constitute professional advice. You should not act upon the information contained in this blog without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this blog and, to the extent permitted by law, Wilder Coe LTD, or its Members, Partners, employees and agents do not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in this blog or for any decision based on it.

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