Employment Law: What you need to know about probation periods.
After going through the hassle of putting out a job advert, sifting through the ever growing pile of CVs and then the painful interview process to pick your ideal candidate, it can be more than slightly irritating to find out that when you bring that candidate into the team, their personality doesn't fit well with everyone else, or maybe they aren't quite what you thought they would be. It is only natural for most employers to have an initial probationary period for new employees, a trial period as such. Probationary periods are ideal as you can use that time to monitor the new employee's work ethic, interaction with the team and many other things, in the comfort that, if you need to, you can dismiss them sooner than if they were under a normal employment contract.
Probation periods are typically ranging from 3 to 6 months, and can include a shorter notice period for termination of employment for either party, should it be necessary. This means that whereas the standard notice period for dismissal could be three months, during probation however, it could be as little as one week. This is more cost effective should the employer feel that the new employee is not right for the role.
However, did you know that probation periods actually have no legal meaning? If you do choose to place a new employee in a probation period, you need to state this in their employment contract, and the terms must not be in violation of the employee's statutory rights.
Even though you may have shorter notice periods whilst on probation, you still need to follow the basic three step process when dismissing an employee. You need to put in writing the nature of conduct that gives rise to potential dismissal, call a meeting with the employee to discuss this conduct, and then confirm the decision in writing, giving the employee a chance to appeal. These regulations apply to all employees, regardless of length of service, or if they are still within their probationary period.
Failure to follow these regulations does not automatically give rise to an unfair dismissal claim as unfair dismissal claims can only be brought after two years of service. However, if you did fail to follow these regulations and a discrimination claim was brought against you, the Employment tribunal can increase the compensation by 10% and they also have the discretion to increase the award by up to 50% where the correct procedure has not been followed. Therefore, dismissing an employee who is still within their probationary period without following statutory processes can end up being very costly.
It is important to get your employment contracts right, for example, if you want to place a probationary period in the contract, you may also want to state the terms in which that period can be extended, otherwise you have no legal standing to extend the probationary period of a new employee. You may feel that you need just a little bit more time to assess their productivity and interaction with the team before removing the right to dismiss following a shorter notice period. If you place such a provision into the employment contract at the outset, then you are well within your rights to extend a probation period, should you need to do so. It is also important to make sure that you inform the employee when they have successfully passed their probation period as this can be good for staff morale.
In order to make sure that your contracts do not leave you open to any employment claims, it is important to make sure they are drafted up by a solicitor, who will be able to inform you of what you need to put into the contract in terms of probationary periods. If you are looking for a solicitor to help you draft up your employment contracts, click here to see what we can do here at Robert Meaton & Co in terms of employment law.
Information found here should not be taken as legal advice, for more information click here.