Staff recruitment is a costly business and there are no guarantees that you’ve made the right call. Most employers will therefore place recruits on a probationary period. What are the benefits and traps?

Why bother with probation?

A probationary period can enable you to delay the provision of certain benefits, such as contractual sick pay, bonuses, etc., until successful completion. This should not affect their statutory rights, e.g. if the employee is off sick during probation you would only have to pay them statutory sick pay (if they qualify). Indeed, employees start to accrue continuous employment rights from day one, e.g. the right not to be discriminated against.

The law. These periods have no basis in employment law, they’re purely contractual. This means it’s important to have the right processes and contracts in place to ensure things go smoothly whether the candidate is a success or if you need to dismiss them.

How long?

Usually, the period is between three and six months. You can extend if necessary, for example to have more time to assess performance, and this is a sensible approach. Your policy must be clearly indicated in the contract, including the length of any additional period.

Shorter notice period. Most probationary periods will have a shorter notice period, some are as short as one week. This gives you the option to get rid of the employee more quickly if they’re not working out and will also mean a smaller payment in lieu of notice.

Delay the dismissal decision?

Whilst you might feel early on that a new employee isn’t up to scratch and be tempted to cut your losses, don’t make any hasty decisions. Think about why you employed them in the first place. Could it be that they are just lacking in confidence or that they haven’t received the correct guidance from their line manager?

Tip. Some employees may require more training or experience in a role before they are fully up and running, and this will cost you far less than going through the whole recruitment process again. Keep track of their progress and discuss any issues or mistakes at the time. Remember to keep records with dates times and what was said and agreed. Send a follow up e-mail.

Useful process. This accurate tracking of performance during the probationary period is really important in cases where you do finally decide that it isn’t going to work out. It means you can set out in a dismissal letter the reasons for the termination of the contract

Dismissal procedure

Since most probationary periods are short, the employee will have insufficient service to bring an unfair dismissal claim if they’re dismissed, unless one of the automatically unfair dismissal reasons applies. e.g. they would still have the right to claim unlawful discrimination, assertion of a statutory right, etc. However, you can’t simply dispense with their services without following the correct procedure.

Tip. When terminating a probationer’s employment, it’s always sensible to follow a fair and reasonable dismissal procedure and be able to show why they were unsatisfactory. This needn’t take long.

Probationary periods are a chance to see whether new staff meet your expectations. However, don’t be quick to fire them if things don’t work out straight away - they might simply need extra training. Use the period to track progress and include an extension if necessary.

When dealing with staff, always consult your HR team to ensure you comply with employment law. We cannot advise on any Employment law issues and we will not accept any liability for any advice or misrepresentation from any general suggestions made during the provision of our services. When in doubt, proper and specialist legal advice should always be sought.