PROBATION - 21.05.2014

Are probation periods pointless?

Unfair dismissal lowdown

The term “unfair dismissal” describes a dismissal that doesn’t fall within one of the potentially fair statutory reasons to dismiss. These are: (1) conduct; (2) capability; (3) redundancy; (4)  illegality; or (5) some other substantial reason. Since 6 April 2012 a new employee has needed two years’ continuous service with you before they accrue the statutory right to issue an unfair dismissal claim; for those hired before this date the right kicked in on the first anniversary of their employment.

Wasting your time?

As you can now dismiss a new employee before the two-year mark without any fear of them bringing a successful unfair dismissal claim, it’s been suggested that putting a probationary period in the employment contract is a “pointless” exercise for employers. Apparently, this is because “you can now just get rid of the employee during the first two years no matter what the problem is” . So is this true?

Hold your horses

From a legal perspective, you can’t do what you like to a new employee during a probation period or otherwise. Whilst they may not have the right to claim unfair dismissal for two years, they do have other rights from day one of employment, e.g. the right not to be discriminated against due to race, pregnancy, etc., the right to a notice period and to holiday pay. So if you were to sack a new hire without a good reason you may still find yourself on the end of a tribunal claim, particularly if they have a protected characteristic.

Probation period benefits

Formal probation periods - which tend to last anywhere between three and six months - offer you a number of benefits. Firstly, with a carefully worded probation period clause such as ours (see The next step ), you can provide for a much shorter notice period throughout the entire probation period, e.g. one week (or even less during the first full month of employment). Secondly, your new employee will be aware that their performance is under constant review and they are at risk of losing their job if their conduct or performance isn’t up to scratch.

Tip 1. If their position is confirmed at the end of the probation period, they’ll be used to performance reviews on conduct, sickness absence, general attitude, etc., and continued monitoring won’t be any surprise.

Tip 2. Where you do dismiss a new hire because they’ve fallen short of the mark during their probation period, you’ll be able to fend off a discrimination claim if you had good work-related reasons to sack them. However, in order to gain that protection you must manage the probation period carefully. We’ve advised on how to do this previously ( yr.13, iss.14, pg.6 , see The next step ).

Tip 3. Ultimately, it’s your choice whether to use probation periods. However, they send a clear message to new hires that they don’t have a guaranteed job until they’ve proved their suitability.

For a free probation period clause and the previous article, visit http://tipsandadvice-personnel.co.uk/download (PS 16.11.02).