What is a Probation Period?

PART ONE: BACKGROUND

1.0 Introduction

“Then comes the harsh reality that, in practice, almost one in five new employees fails to get past their probationary period or have their probationary period extended. Given these hard facts, employers are better positioned to deal with issues if the employment contract contains a well-drafted express probationary period clause.” (Last, 2016).

Within a workplace setting all employees, whether they are starting their first ever job or are veteran senior executives, will undoubtedly be required to undertake some form of probation period during the first few months of their new job or role.

A probation period enables the employer, usually through a line-manager (e.g. supervisor, team leader or manager) to evaluate closely the progress and skills of the newly hired employee/worker, determine appropriate assignments, and monitor other aspects of the employee such as honesty, reliability, and interactions with co-workers, supervisors and/or customers.

As most employers (big or small) will appreciate, the recruitment and selection process can be an administrative burden and costly process, and going through the whole recruitment process only for the new employee to leave during the probation period is a complete waste of time and resources, meaning the employer must go through the whole process again! A survey in 2014 by Opinion Matters, a market research company, suggested that 18% (1 in 5) of new employees do not successfully complete their probation (Roberts, 2014) – “50 percent at the State of Nevada” in 1999 (Privott, 1999, p.2).

With this in mind, it is important that employers develop a robust, structured, and cost-effective probation process that has synergy with the recruitment and selection process and aids new employees.

And, with employees willing to lie (to varying degrees) during interviews and giving fraudulent references (Nelson, 2013; FSB, 2014; Last, 2016), it is important for employers to utilise a probation period to gain a ‘fuller picture’ of the new employee so they can assess actual job performance rather than interview rhetoric.

This article is divided into five parts for easier reading. Part One is the background which outlines what probation are, their purpose, and related legislation. Part Two describes the probation process. Part Three provides some advice and guidance for employers, line-managers, and employees both generally and specifically. Part Four highlights some of the organisations that may help employers and employees with impartial advice and guidance relating to probation periods. Part Five provides some useful publications and links, and finally some references.

1.1 Caveats

• Please note the guidance within this article is of a general nature and is not intended to act as legal advice.
• It is important that employers and employees ensure legislation, policies and procedures, and contractual obligations are followed.

1.2   What is a Probation Period?

There are different ways to define a probation period, for example:

• A probation period is a specific period of time for both the employee and employer to assess suitability of the job/role after having first-hand experience.
• A probation period gives the employer some time to make sure that the selection they made for their vacancy was the right choice.
• Probationary periods are defined periods of time that employees are exempt from certain contractual items, most importantly the notice period required for termination. The probationary period allows both employee and employer to see if they are a ‘good fit’ and to make things easier if they need to terminate the contract.
• A working test period of varying lengths used by management to observe an employee’s performance before making a final selection decision.

It is an opportunity to evaluate the new employee’s performance, commitment and general suitability for the role, and to take any necessary action if they are failing to meet the requirements.

They generally last for between one and six months, and both the employer and employee have the opportunity, subject to a notice period, to walk away from the agreement at any point during this time.

The probation period can also be known as a trial period, employment probation, probationary employment period, probationary period or simply probation.

A distinctly separate but intricately linked element of the probation process is the induction process. An induction process will involve (usually within the first week):

• Administration (e.g. collecting bank details);
• Any mandatory/in-house training (e.g. health and safety training specific to the organisation, such as site safety for construction workers); and
• A walkabout/presentation/outline of the organisation.

1.3 What is the Purpose of a Probation Period?

There are a variety of different viewpoints regarding the purpose of a probation period, but they ultimately seek the same outcome – an employee who is capable of doing the job/role.

“Employers use trial periods to address risk when hiring” (Houghton, 2012, p.iv).

“The probationary period can be valued as the most valid determinant of job performance and seen as the last step in the selection process…” (Privott, 1999, p.2).

Although viewed as a management process, the purpose of a probation period is two-fold:

1. Management will use a probation period to evaluate an employee’s:

• Behaviour: Attitude and fit with the organisational culture.
• Performance: abilities, skills, and knowledge required for the job/role.

2. Employees will use a probation period to evaluate if:

• They feel comfortable with the organisational culture;
• They like the job/role; and
• The job/role is what they thought it would be.

Some of these elements are not always easy to judge during an interview, and the wider recruitment and selection process in general.

Performance during a probation period should be linked to the job description, and the job description should reflect the job/role.

In terms of managing expectations, if the employee finds the job/role is not for them or the employer feels the employee is not suited to the job/role, a short notice period can facilitate a speedy end (Section 3.10).

1.4 Do Probation Periods Work?

“In almost all cases we find large jumps in the predicted probability of a work absence after probation periods are completed.” (Riphahn & Thalmaier, 1999, p.12).

Research by Loh in 1994, using data on US hires, provides evidence that supports the hypothesis that a probation period induces self-selection by workers. Loh (1994) argued that individuals who accepted jobs with a probation period tended to be more efficient workers and less likely to quit than those who took jobs without probation. Loh (1994) hypothesized that workers who fear they will not last through the probation period, either because they are not sure their performance will be adequate or they think they may quit, will not apply for jobs with probation, whereas those who are more confident that their work will be acceptable and that they will not quit will apply for such jobs in order to obtain the higher wages that commonly attach to jobs with probation.

Loh (1994) drew three conclusions from his research:

1. The empirical evidence suggests that employers can reasonably expect the use of probation to attract applicants with certain desirable qualities.
2. Theoretical models of the labour market that rely on contracts as a sorting mechanism appear to have an empirical basis.
3. Both workers and employers benefit from the widespread use of the probation period in the labour market:

• Workers benefit from the choice between employers with and without employment probation because that arrangement helps them maximise their discounted lifetime income; and
• Employers benefit because it can help them obtain workers of the kind they desire.

Some organisations view initial fixed-term contracts as a probationary stage. Depending on the job performance and labour demand, workers will transition into permanent employment within the organisation. As pointed out by Loh (1994), Rosen (1994) and Lazear (1995) probation periods may induce self-selection of those workers with higher ability because they have a higher probability to obtain permanent contracts. This means that temporary contracts with lower wages can be a sorting mechanism for organisations. Low wages during the temporary contract period will be compensated for by higher future wages at the same employer (Lazear, 1979).

Other research by Riphahn & Thalmaier (1999) demonstrated that employees on probation exhibit behavioural adjustments in response to probation periods - meaning that once the probation period ended the probability of work absences jumps and is significantly above previous levels.

1.5 Legislation Underpinning Probation Periods

“In the absence of a probationary period clause in the employment contract, the employer will have to rely on the usual notice provisions to terminate the employment contract.” (Last, 2016).

There is no explicit legislation underpinning probation periods, meaning they have no special/legal status.

Probation periods are a management process; essentially being viewed as a safety net for the employer.

However, that said, any criteria within a contract of employment regarding probation periods, including documents mentioned within the contract of employment, may be taken into consideration.

Important things to note:

1. When an employee signs a contract of employment it creates contractual (i.e. legally binding) obligations between the employer and employee enforceable in a court of law.
2. When written into a contract of employment, a probation period can be considered a contractual obligation, and therefore a material element/clause, which an employee must agree to when signing their contract of employment.

• Employers should ensure they include a well-drafted probation period clause.
• The probation period can be defined (including criteria and process) in an Employee Handbook and will become a contractual obligation (for the employer and employee) if referred to in the contract of employment. An employee should be provided with reasonable access to the Employee Handbook prior to signing the contract of employment if this is the case.

3. Any documents referred to in the contract of employment also create contractual obligations between the employer and employee – hence it is advisable to read these documents prior to signing any contract of employment.

4. An employee should be given reasonable access to any documents referred to in the contract of employment prior to signing the contract of employment.

• For example, documents posted with the contract of employment or accessible on the company website.

Legislation that may be relevant to probation periods (not an exhaustive list) can be found in Part Five.

It is important to note that the law can vary across the four constituent countries of the UK.

1.6 Apprenticeships

An apprentice’s contract with their employer normally has a specified length. It is not legally considered to be a fixed-term contract, with the Fixed Term Employees Regulations excluding apprentices altogether. Apprentices are entitled to the same fair employee rights as other members of staff and they are formally overseen by the UK government.

In practice, apprentices enjoy many more rights than those offered to an employee on a fixed term contract. If an employer wants to dismiss an apprentice, the onus is on the employer to show that they are not breaking the terms of the agreement with the apprentice.

This has significant implications for dismissal. If the employer breaks the terms of the agreement, the apprentice stands a good chance of being awarded (at an employment tribunal) all the wages they would otherwise have been paid for the length of the contract. Employers, therefore, need to be very careful when it comes to dismissing apprentices.

Employers should consider making sure that their disciplinary procedures, and what they consider to be fair and reasonable grounds for dismissal, are included in the apprentice agreement. This way the employer stands less chance of being accused of breaking the contract in the event that they have to dismiss an apprentice for one of these reasons.

1.7 Internships

Internships (also known as work placements or work experience) are designed for those who are still exploring a range of career options and, unlike apprenticeships, they are not formally overseen by the UK government, and interns will not generally work towards a qualification. Internships are normally restricted to a much shorter time period than an apprenticeship, from two weeks in the summer to a full calendar year, and may not be paid.

However, interns will probably have to sign some form of written agreement which will outline directly, or indirectly via referring to other documents (not an exhaustive list):

• The job description;
• Pertinent organisational policies and procedures;
• Duration of the internship; and/or
• Behaviour and professional standards expected.

In general, interns will conduct a period shadowing (of another employee/manager) before undertaking autonomous/supervised work. The exact nature of the work undertaken by an intern, and autonomy/supervision, varies widely between organisations and departments within organisations.

An internship agreement should expressly state that if the intern is not meeting the standards as outlined or acting in an unprofessional manner they may be terminated from the internship.

The reader can find further information on employment rights and pay for interns here.

1.8 How Long Should a Probation Period Last?

“While a probationary period of less than three months probably won’t give an employer enough time to assess whether a new employee is a good fit for the business, anything longer than six months might put an unfair amount of pressure on the employee.” (Last, 2016).

Although there is no legislation determining the length of a probation period, there is an expectation that an employer will be reasonable.

In general, a probation period will last between three and six months, with a possible extension of two months – for a maximum of eight months.

However, there are variations between employers and groups of employees, for example:

• Entry-level jobs and roles may have a three month probation period whilst higher-level jobs and roles may have a six month probation period.
• A company may adopt a six month probation period for externally selected employees and a three month probation period for internally selected employees.
• Some companies have been known to adopt a twelve to twenty-four month probation period.
• Employees on short-term contracts (i.e. less than twelve months) or casual workers may have a short probation period, as little as one week.
• In 1992, probation periods for newly qualified teachers (NQT’s) were dropped, but the Teaching and Higher Education Act 1998 introduced arrangements by which the Secretary of State for Education could bring introduce regulations requiring NQT’s to serve a period of probation. The Education (Induction Arrangements for School Teacher) (England) Regulations 1999 made it a requirement that all NQT’s complete an induction period equivalent to one year upon qualification as a teacher.
• In general, anything over twelve months may be viewed as excessive (unless the employer can justify its reasoning).
• For example, a member of a police force appointed in the rank of constable “…shall be on probation for the first two years of his service…” (Home Office, 2015).

Regardless of the length of the probation period adopted by the employer, it should be explicitly stated in the contract of employment – If not the employee should get it confirmed in writing.

The employee should note when their period of employment commenced and, from this, when their probation period should finish (subject to any reasonable period of extension).

1.9 When Does Employment Officially Start?

An employee’s official date of employment (which should be stated in the contract of employment (ACAS, 2018)), and any statutory rights, commence on their first day of work and not the end of the probation period.

1.10 Statutory Employment Rights

As noted above, probation periods have no special legal status and employees on probation enjoy the same statutory rights as other staff. It is an employee’s length of service that determines their statutory rights, and the fact that they are on probation has no bearing on this, meaning they are immediately entitled to statutory rights such as:

• The national minimum wage (NMW) (or possibly the National Living Wage).
• Holiday pay.
• Rights under the working time rules.
• Time off work in certain circumstances, for example:
• Antenatal and adoption appointments.
• Family-related leave and pay.
• A female employee on probation who is pregnant is entitled to take maternity leave and may qualify for statutory maternity pay (SMP). She cannot be required to wait for her probation period to end before starting her maternity leave.
• Itemised payslips.
• Statutory sick pay (SSP):
• Subject to earning over the lower earnings limit for national insurance contributions.

A full list of employment rights can be found in Section 5.1.

During their probation period, employees may be exempt from other company benefits (as defined by the company) such as:

• Pension (subject to earning above the necessary threshold); and
• Free private medical care.

The contract of employment would be expected to explicitly state that a probationer is not entitled to these benefits until they have successfully completed their probation period.

During probation, employees are also protected against:

1. Unlawful discrimination, for example:

• If an employee on probation has a disability, and/or their sickness absence is due to a disability, the employer will need to make reasonable adjustments.

 2. Detrimental treatment, for example:

• If an employee on probation raises a grievance, the employer should investigate further. The grievance may relate to discriminatory behaviour (e.g. bullying or harassment) or unlawful detrimental treatment, which the employer will need to address.

 3. Automatic unfair dismissal:

• For example, asserting a statutory right or that it was based on unlawful discrimination.
• ‘Ordinary’ unfair dismissal requires two years of service (since April 2012).
• This generally means that employees on probation cannot claim that their dismissal was procedurally unfair or unreasonable – although employers should follow their own policies (Section 3.6).

1.11 Other Countries

The probation period for a US employee varies, and depends entirely on the arrangement that has been agreed between the employer and the employee. It is usually 90 days for the private sector and one or more years for select federal government positions (GAO, 2015) – although the 2017 Ensuring a Qualified Civil Service Act (H.R. 4182) will extend the probation period from one to two years for the competitive service and senior executive service if approved by the US Congress (Wagner, 2017). For some academic positions, employees will face a probation period of seven years!

However, the reader should be aware that the US adheres to the ‘at will’ doctrine which means the employer or employee is free to terminate at any time for any reason, so long as it is not a violation of a protected class (e.g. race, sex, age, pregnancy or religion etc.).

Within Australia, “There is a common misconception that probation periods can only be set by employers in employment agreements and that this action will determine the employer’s right to dismiss an employee. If your job is covered by the Fair Work Act 2009 (Cth) this is incorrect.” (Robson, 2014).

The Fair Work Act overrides any employment agreement, but does automatically include what would be considered to be probation periods for employees. The Act creates minimum requirements that must be satisfied before an unfair dismissal action can be brought against an employer, based on the number of employees.

• 15 or more employees: Employee be employed for a period of six months; and
• Less than 15 employees: Employee be employed for a period of 12 months.

An employee can still bring a dismissal action if there is unlawful termination (which would include a decision based on an employee’s race, sex, religion, or pregnancy etc.).

In New Zealand, since 01 April 2011, an amendment to the Employment Relations Act 2000 has allowed all employers to hire new employees on a trial period of up to 90 calendar days (Houghton, 2012). Prior to this, employers with fewer than 20 employees were able to use the provision from 01 March 2009. Under the amendment, the employee cannot raise a personal grievance for reasons of unjustified dismissal if dismissed within the 90 calendar days, but still has the right to protections against discrimination, sexual and racial harassment, duress, or unjustified action by the employer that disadvantages the employee. Employees can still access mediation, and the principle of good faith still applies to the relationship.

Some employers (across various countries) utilise fixed-term contracts (FTC) “…as prolonged probationary periods, which allow the employer to better screen workers before promoting them to a permanent position.” (Boockmann & Hagen, 2005).

PART TWO: THE PROBATION PROCESS

2.0 Introduction

There are a number of steps in a probation period:

1. Contract of employment and statement of particulars.
2. Start of probation period.
3. Training and support during the probation period.
4. Review(s) of performance during the probation period.
5. End of probation review.
6. Outcome of the probation period.
7. Extending the probation period.

In brief, an employer should:

• Decide on the appropriate length for the probation period.
• Confirm in writing to an employee that they will be required to successfully complete the probation period, and the standards of conduct and performance expected.
• Take steps to ensure the best outcome of the probation period.
• Be aware that employees on probation have the same statutory employment rights as other employees.
• Determine the contractual terms that will apply during the probation period.
• Consider whether or not to extend the probation period of an employee who has failed to complete it satisfactorily, prior to the end of the probation period.
• Take care if an employee’s failure to complete the probation period satisfactorily might be connected to pregnancy, family-related leave or sickness.
• Confirm employees who have passed their probation in post, prior to the end of the probation period.
• Comply with statutory and contractual notice obligations when terminating employment during a probation period or on its expiry.

Some employers expressly state that their probation procedures replace appraisal, capability and disciplinary procedures for employees during their probation period.

2.1 Contract of Employment

As outlined by the Advisory, Conciliation and Arbitration Service (ACAS, 2018), key points regarding contracts of employment include:

• A contract of employment is an agreement between an employer and employee and is the basis of the employment relationship. It sets out an employee’s: employment conditions; rights; responsibilities; and duties – known as the terms of the contract.
• Most employment contracts do not need to be in writing to be legally valid, but it is better if they are.
• A contract ‘starts’ as soon as an offer of employment is accepted. Starting work proves that you accept the terms and conditions offered by the employer.
• Most employees are legally entitled to a Written Statement of Particulars (or Employment), within two calendar months of starting work, which state the main terms and conditions of employment.
• This should include details of things like pay, holidays and working hours.
• A written statement must include “length of any probationary period and conditions.” (ACAS, 2018), although the Employment Right Act 1996 (as amended) makes no mention of probationary periods.
• An existing contract of employment can be varied only with the agreement of both parties – although anyone who has had a new contract imposed on them by their employer may reject that statement.

Although it is very unusual for a contemporary contract of employment not to mention a probation period, they do exist. 

The reader can find further information on contracts of employment here.

2.2 Start of Probation Period

At the start of a probation period the employer and employee should discuss:

• What the employee is expected to achieve in their job during the probation period and thereafter.
• How performance during the probation period is linked to the job description.
• An overview of the general business practices and procedures.
• What induction training needs to be completed? For example, health and safety training or other training specific to the organisation/job/role.
• Details of the core values of the organisation and behaviours expected of the employee.
• What mentorship or coaching will be provided to the employee? Will the line-manager or another employee/manager be the mentor?
• The standards of regular attendance expected from the employee.
• The standards of customer service expected from the employee.
• Any development required to help the employee to do their job.
• How problems with performance will be addressed.
• When the probation period review meetings will take place, and who should initiate them.

The employer should structure the process so both parties are clear about expectations.

It may be advisable to make use of the SMART model:

• Specific: simple, sensible, and significant.
• Measurable: meaningful, and motivating.
• Achievable: agreed, and attainable.
• Relevant: reasonable, realistic and resourced, and results-based.
• Time bound: time-based, time limited, time/cost limited, timely, and time-sensitive.

It is important for employers to reassure their new employees, as 49% will feel “…insecure at work during their probation periods.” (Roberts, 2014).

2.3 Training and Support during the Probation Period

As part of the probation process, the employer should set out details of informal training, formal/structured training, guidance and supervisory support the new employee can expect to help them achieve the required standards.

Training can be a mix of statutory and organisation-specific training.

The employer should also explain the mechanism for identifying and discussing any problem areas or areas for development at the earliest opportunity, together with the provision of regular and constructive two way feedback.

2.4 Review(s) of Performance during the Probation Period

During the probation period a series of formal review meetings should take place between the new employee and their line-manager, with the exact number and frequency (e.g. weekly or monthly) depending on the length of the probation period.

For example, a three month (twelve week) probation period will probably have:

• An initial review within the first week:
• Expectations of the probation period as discussed in Section 2.2.
• A mid-review at six weeks:
• Address any concerns or issues that have been identified; and
• Develop solutions, for example extra training to develop a current skill or additional training to develop a new skill. 
• An end of probation review during week twelve (Section 2.5):
• Assess performance during the process with reference to the job description.

The review meetings should be viewed as a time for feedback, evaluation and assessment by both the employer and employee. In general, feedback should be a mix of informal and formal, and may include findings/observations from other employees, but is not the preserve of the employer. Employees will also be evaluating and providing feedback, and making sure they have made the right decision.

Prior to any review meeting both the line-manager and employee should draft some notes to help discussions during the meeting. Any criticism should be constructive and offer solutions to problems rather than just highlighting the fact they exist.

Generally, employers have three avenues to address employees’ poor performance or absence (the two most common factors during probation (Roberts, 2014)):

• Day-to-day performance management activities, such as providing regular performance feedback to employees, can produce more desirable outcomes for employers and employees than dismissal options. However, line-managers do not always have effective skills, such as the ability to identify, communicate, and help address employee performance issues.
• Probation periods for new employees provide line-managers with an opportunity to evaluate their performance to determine if an appointment should become final. However, line-managers may not use this time to make performance-related decisions about an employee's performance because they may not know that the probation period is ending or they have not had time to observe performance in all critical areas.
• Formal procedures require employers to follow specified procedures when dismissing poor performing employees, but they can be more time and resource intensive than probation dismissals. It can take six months to a year (and sometimes longer) to dismiss an employee.

During the probation process, the employer should:

• Keep full, clear records and documentation of meetings throughout the probation process;
• Ensure all documentation is signed off by both the employee and the employer; and
• Give a copy to the employee.

2.5 End of Probation Review

Some organisations, especially larger ones, will expect their employees to take part in one or more review meetings during their probation period (as noted above). This gives both the employer and employee the chance to address any issues or concerns – and come up with the right solutions, like extra or additional training.

When it is time for an employee’s end of probation review, simple preparation can make it both a productive and constructive meeting.

Employees should remind themselves of the criteria their employer will use to assess them, referring back to the job description and then thinking of practical examples of how and when they met these expectations.

Developing a list of strengths and areas of development can be a useful exercise, for example:

• What are your strengths and how they fit with the job/role?
• How your skills, knowledge and abilities fit with the job/role.
• Training you benefited from: how and why?
• How you fit into the organisational culture.
• How the job/role has met your expectations.
• Areas you struggled with, including potential solutions. This will demonstrate to your employer that you are willing to learn and grow within the organisation.
• Think of ways you can progress in the organisation. This demonstrates that you are serious about your work with, and invested in, the organisation.

For employees who successfully complete their probation period, the final review can also be used to discuss plans for future development; being the first of many personal development meetings!

2.6 Outcome of Probation Period

At the end of a probation period there are a number of potential outcomes, which include:

1. Employer informs employee, either verbally or in writing, they have successfully completed the probation period.

• At the final review meeting the employer should verbally confirm that the employee will be officially confirmed in the appointment, following this up with a written letter of confirmation.
• The end of probation process may involve a pay rise or promotion (e.g. soldiers moving from Phase 1 to Phase 2 training).
• 22% of employees will try “…harder during their probation period than they would when the job was secured.” (Roberts, 2014).

2. Employer informs employee, either verbally or in writing, they have unsuccessfully completed the probation period.

• This could lead to an extension of the probation period (Point 3) or termination of employment (Point 4) which the employer must state, either in writing or verbally.
• At the final review meeting the employer should verbally confirm that the employee was unsuccessful in the probation period and the reasons why, following this up with a written letter of confirmation.
• Poor performance (62%) and absence (50%) are the primary reasons for not successfully completing a probation period, with personal disagreements at 12% (Roberts, 2014).

3. Employer informs employee, either verbally or in writing, of an extension to the probation period.

• There is a general consensus that an employee should only undertake one extension of their probation period, except in exceptional circumstances.
• At the review meeting the employer should verbally confirm that the employee’s probation period is being extended and the reasons why, following this up with a written letter of confirmation.

4. Employer informs employee, either verbally or in writing, their intention to terminate their contract, subject to any notice period.

• Employees who fail their probation are still entitled to work (or receive) their notice period, as well as any outstanding pro-rate holiday pay.

5. Employee informs employer, either verbally or in writing, their intention to submit their period of notice.

• For example, this could be because the employee does not like the job/role, the culture of the organisation, and/or the job/role is not what they thought it would be.

6. The probation period is ended by default.

• If the employer does not, verbally or in writing, inform the employee of an extension to the probation period or conduct any form of end of probation review, the probation period can be considered as successfully completed by the employee and the employer once the end date of the probation period has passed. 

Any company benefits restricted by/during the probation period should be accessible to the employee once the probation period successfully ends.

As well as cost of hire and time to hire metrics, one of the factors that recruitment professionals (especially in larger firms and recruitment agencies) are judged on is the number of new employees who pass their probation.

2.7 Extending the Probation Period

“The probationary period clause should expressly state that the employee will not be deemed to have passed their probation unless they receive written confirmation to that effect from the employer; otherwise, the probationary period may inadvertently lapse and the employer will not be able to extend the probationary period.” (Last, 2016).

An employer can extend a probation period, as long as employee’s contract states the employer can do this.

Generally, the purpose of extending any probation period is to:

• Enable the employee further time to improve their performance in the new job/role;
• Demonstrate competence in the full range of duties; and/or
• Demonstrate required behaviours.

If an employee’s performance is considered unsatisfactory in some areas, but the employer feels that further training and support may bring the employee up to the required standard, an extension (on a month-by-month or block basis) can be considered. The employee should be informed, either verbally or in writing (preferable), how the probation period will advance and the time frame.

This could also be appropriate in cases where the employee or the line-manager has been absent from the workplace for an extended period during probation in certain circumstances beyond the employee’s control. For example, a female police officer on probation who gives birth may have their probation period extended due to maternity leave.

An extension should normally be granted only where there are special circumstances justifying, such as a course, and can only be made before the end of the original probation period, either verbally or in writing.

The period of extension should relate to the original probation period, for example:

• An initial three probation period with an extension of three months.
• An initial six month probation period with an extension of two months.

As noted above (Section 1.6), probation periods should generally be a maximum of eight months (initial probation period and any extension), although some employers do have longer periods which can be justified by the complexity of the job/role.

Where it is agreed that an employee’s period of probation will be extended, it is important for the employer to set out the terms of the extension in writing. For example, it is important to state clearly:

• The length of the extension and the date on which the extended period will end.
• The reason for the extension.
• For example that the employee’s performance has fallen short of certain standards, but that the employer reasonably believes that an extension of time will be effective in allowing the employee to achieve these standards.
• The performance standard(s) or objective(s) that the employee is required to achieve by the end of the extended period of probation.
• Any support, such as further training, that will be provided during the extension.
• That if, by the end of the extension period, the employee does not meet fully the required standards, their employment will be terminated.

It is not advisable to make extending probation periods the norm. An extension should be agreed only if there are special factors that justify it.

If an employer is using extensions on a regular basis or for all/most employees, then the reason should be sought. Reasons for continual use of extensions can vary, for example:

• Management originally chose to short an initial period and have not changed it; or
• Management utilises probation periods to deny employees access to other company benefits.

It is a generally accepted principle that if an employer does not (verbally or in writing) extend the probation period, the employee will be deemed to have passed their probation once the probation period has expired, and the employer cannot then compel the employee to (retrospectively) agree to an extension (Last, 2016). At this point employees gain access to other company benefits (Section 1.8).

PART THREE: ADVICE AND GUIDANCE

3.0 Introduction

This part of the article provides advice and guidance on issues related to probation, such as questions to ask, first impressions, promotion, pay, related policies and procedures.

3.1 Things worth Asking During Probation

If the employer does not follow the general process outlined above, then it may be worth asking the following questions (not an exhaustive list):

• What is expected of you during and after the probation period?
• What are the core values of the organisation?
• What are the behaviours expected of you?
• What training and support will you receive during and after the probation period?
• How will performance issues be addressed?
• When will reviews take place?

3.2 First Impressions Count

The first day at an organisation is always daunting, especially when if it is your very first day in a workplace. You may feel that all eyes are on you – so try your best to look the part. Some tips include:

• Dress appropriately, make sure your hair is clean and (try to) remember the names of the people you are introduced to.
• Take in as much as possible.
• Pay attention to the way people dress and speak, and identify at least two peers you can form a closer bond with. This will help you to come to grips with the company culture much quicker.
• Another way to impress during your probation period is to play to your strengths. You have been chosen for this role because of what you are good at. Try to find as many opportunities as possible to showcase these strengths and skills, and remember to make a note of these. This will come in handy during your end of probation review.
• Last, but not least, remember to show great levels of self-awareness. This means taking responsibility for how you come across, your actions and areas for improvement. By being self-aware, you will quickly demonstrate the value you add to the company, boost your manager’s confidence in you and win over critics.

3.3 Tips for Line-Managers

Responsibility for ‘delivery’ of a probation period will largely fall on the shoulders of the new employee’s line-manager. It is therefore important that the line-manager is ready for the probation process, by:

• Being prepared.
• Conducting regular meetings.
• Providing feedback.
• Exploring problems.
• Setting the right tone.
• Encouraging an open dialogue.
• Agreeing an action plan.
• Making a record.

Depending on the employer, line-managers may not receive sufficient (or any) performance management training, meaning they may not always have effective skills, such as the ability to identify, communicate, and help address employee performance issues.

3.4 When an Employee on Probation is Experiencing Difficulties

If the employee is experiencing problems at any stage during their probation period the employer should discuss these with the employee, and not wait until the next scheduled review meeting.

The primary purpose of ongoing assessment is to facilitate a sustained improvement in performance of the employee and to ensure that they have had sufficient opportunities to achieve this. At any subsequent review or informal meeting with the employee where there are issues to be addressed, employers should consider the following approach:

• Why are things not going as expected?
• Have expected requirements been set too high?
• Have there been any internal/external factors that have affected the development of the employee? For example, a delay in training.
• What can the organisation/employer do to help the process get back on track?
• Has the organisation got the right employee but in the wrong job? Could another job/role be more suitable?
• Has the organisation hired the wrong employee? For example, cultural fit?
• Reinforce the areas where the employee is doing well.
• Be open and honest with the employee about their performance issues, and provide documentary evidence whenever possible.
• Give the employee the opportunity to respond - There might be some other factor behind the problem.
• Try to reach an agreement on the nature of the problem. If joint agreement can be reached the employee is more likely to react positively to any suggestion for improvement.
• Offer guidance and support on how to overcome the difficulties. This might include extra training/coaching or closer supervision.
• Ensure the employee understands the degree of progress required and that successful completion of the probation period is dependent on it.
• Warn the employee that if this standard is not reached it will be necessary to terminate their employment.
• In the case of misconduct, short of gross misconduct (for which summary dismissal will be appropriate), warn the employee that any further misconduct will lead to immediate termination of their employment.

3.5 Promotion and Probation Periods

For employees who are promoted, the general principles outlined in this article should be followed, with the major difference being the outcome for failing the probation period.

The employer should make it clear, either verbally or in writing, what the consequence(s) of failing the probation period are prior to the employee accepting the promotion, for example (not an exhaustive list):

• The employee is demoted to their former job/role, with their former terms and conditions.
• The employee is demoted to a similar job/role, with similar terms and conditions.
• The employee is given notice to terminate their employment.
• The employee gives their notice to terminate their employment.

Employees should be aware whether they face demotion or dismissal for failing their probation period. Employees who have worked for the employer for two or more years will be in a better position to launch a potential claim for unfair dismissal.

3.6 Following Own Policies and Procedures

A number of organisations (generally larger firms and recruitment agencies) will have a dedicated human resources (HR) department, whilst smaller and medium enterprises (SME) may have only one or two HR specialists, and some organisations will have no HR representation.

It is fairly common for organisations to follow the design and delivery model, meaning HR (in-house or outsourced) will design the relevant HR policy/procedure and line-managers will deliver it. This means that employees on probation will interact with their line-manager rather than any HR representative. Although line-managers may not have the HR expertise of a HR representative, they still have a duty of care to follow any official policies and procedures (and any legislation that underpins them).

With this in mind, employers are required to have a written set of grievance, disciplinary and dismissal policies and procedures. These must be drawn up in accordance with the ACAS (Section 4.1) codes of practice, and they must be provided to all employees (or at least given reasonable access).

Employers must follow these procedures at all times. Employers that fail to abide by their own policies and procedures, or do not have any, will have a much harder time demonstrating that they have disciplined or dismissed an employee fairly and reasonably.

3.7 Period of Notice during Probation

It is a fairly common practice for contracts of employment to have an increasing amount of notice based on length of service. However, for probation periods it is usually one week or month.

The contract of employment should state what the notice periods are.

In general, the period of notice should be equal between the employer and employee, for example each giving the other one month’s notice. However, some employers provide unequal notice, for example the employer is required to give one week’s notice and the employee is required to give twelve weeks’ notice (although this is fairly rare).

3.8 Pay during Probation

Some employers start employees on a lower rate of pay which will be raised on successful completion of the probation period.

This is usually outlined in documents referenced in the contract of employment, and are subsequently a contractual obligation (Section 2.1).

3.9 Grievance and Disciplinary Procedures

As noted above (Section 3.6), organisations have a duty to follow their own policies and procedures, and this applies to employees.

In general, most contracts of employment will refer to the grievance and disciplinary policies, thereby making them a contractual obligation (Section 2.1) for both the employer and employee.

If the grievance or disciplinary process is invoked during the probation period or after, the employer and employee must ensure they follow the procedure(s) as described in the policies, or it could undermine any future legal process/case.

3.10 Termination of Contract of Employment

“Regardless of the length of the probationary period, both parties should be able to terminate the employee’s employment on short notice during that time. For example, if the usual notice provision is three months, it may be preferable to have a one-month notice provision during the probationary period. It is about striking a balance between not wanting to have the employee around for long once the decision has been made to terminate their employment with having sufficient cover while trying to find a replacement for the departing employee.” (Last, 2016).

In order to provide employees with a full opportunity to meet the required standards of the probation period the employer will be expected to wait until the end of the probation period before taking any decision to terminate employment.

It may also be prudent for an employer to consider a period of extension (if not already used), extra or additional training, or possibly a move to another more suitable job/role. The exact options available to employers, prior to a decision to terminate, will vary and will most likely be taken on a case-by-case basis.

However, where a decision to terminate an employee’s contract has been made:

• The employer should meet with the employee, having given them notice in writing (usually five days).
• The employee may be represented by a trade union representative or work colleague.
• The employer should set out clearly the reasons why the employee has not successfully completed the probation period.
• The employer should give the employee the opportunity to present their case, including any mitigating circumstances.
• Statutory notice applies as a minimum, although the contract of employment may stipulate a longer period of notice, with which the employer must comply.

Most policies or contracts of employment state the full disciplinary procedure is not usually considered appropriate for employees working within the probation period.

It is important to note that, whilst an employee cannot claim unfair dismissal in the first two years of service (since April 2012), if an employer dismisses an employee without going through a fair dismissal process an employee can claim wrongful dismissal, for which there is no length of service requirement.

Wrongful dismissal occurs when an employer dismisses an employee in breach of the employer's contractual or statutory obligations, for example, by failing to follow a contractual disciplinary/dismissal procedure or failure to give contractual notice.

Employers can be required to pay damages for wrongful dismissal if taken to an employment tribunal. It is also worth highlighting to employers that, if the employee has a protected characteristic as per the Equality Act (for example is disabled), there is a potential risk that the employee could make a claim in regards to discrimination and this is something that employers should bear in mind when making decisions.

If the employee has taken less statutory holiday than they have accrued during the probation period, then the employer should make a payment in lieu of untaken holiday, on termination.

Finally, when letting someone go, it is important to conduct an exit interview where the employer and employee can discuss (constructively) exactly where things went wrong, for two reasons:

1. To aid the employer better define its recruitment and selection process, job description and probation process; and
2. To aid the employee to improve their opportunities in future jobs/roles. 

If an employer is letting someone go for behavioural reasons, it is important to make sure to stick to the facts to avoid any legal backlash.

3.11 Can I Be Dismissed for Poor Performance Before the End of My Probation Period?

The simple answer is yes. However, whether an employee can be dismissed for poor performance prior to the end of their probation period will largely depend on what is contained in the contract of employment and any associated documents, for example:

• If an employer does not stipulate a probation period they would be expected to follow any applicable disciplinary/dismissal procedure prior to the dismissal, and must give the required period of contractual or statutory notice (whichever is greater).
• If an employer does stipulate a probation period they would be expected to follow their own probation process, and any applicable disciplinary/dismissal procedure prior to the dismissal, and must give the required period of contractual or statutory notice (whichever is greater).

Ultimately, an employer does not need to wait until the end of the probation period before dismissing an unsatisfactory employee - the employee can be dismissed during the probation period. If the employee performs below the expected standards during the probation period, the employer can take the necessary steps to dismiss them without waiting for the probation period to come to an end. The employer should ensure that it follows any applicable contractual disciplinary/dismissal procedure prior to the dismissal and must give the required period of contractual or statutory notice, whichever is the greater.

The reader should note that employment can be terminated within the first two years of employment (since April 2012) regardless of whether an organisation uses a probation period or not (notwithstanding the principles outlined in Section 1.9).

3.12 If I Fail My Probation Can I Be Dismissed Without Any Chance to Fight It?

Barring certain exceptions, yes. In order to claim unfair dismissal in terms of performance, an employee must have worked for a certain period of time:

• Before 06 April 2012: One year.
• On or after 06 April 2012: Two years.

It is only then that an employee is entitled to their main/ordinary unfair dismissal rights.

However, probation does not mean that employers can simply do what they want! Employees on probation do have the right not to be dismissed on grounds that could be deemed discrimination relating to matters such as age, sexual orientation, or religious belief. In some cases, for example whistleblowing, dismissal is automatically unfair even without any qualifying period. In these and other situations, the employee is entitled to make a claim.

However, that said, employers dealing with disciplinary or performance issues during a probation period, particularly one that could result in termination of employment, will want to be able to demonstrate that organisation’s grounds for its actions were genuine. Employers will be in a much better position to demonstrate this if they have conducted (and recorded) a proper/thorough investigation and given the employee an opportunity to explain their version of events.

3.13 What Should I Say at an Interview If I Failed My Probation at My Last Job?

Talking about failing a probation period can be difficult and embarrassing, depending on the reason you failed, for example did not like the job versus could not do the job.

You will need to be honest, as the employer may state that employment is subject to references, and it is important to note:

• Be aware that some employers will not provide references due to concerns about litigation and, if they do, they may only provide job title, dates of employment, and salary history.
• Current/former employers are under no legal obligation to give current/former employees a reference.
• Generally, there is no rule about how long or detailed a reference has to be.
• In some occupations, references are mandated (for example junior doctors in the UK) and a template is provided.
• If a current/former employer does provide a reference, then they have a duty of care to ensure it is accurate and factual. Do not confuse a bad reference with an inaccurate or nonfactual reference.

Use this as a unique chance to clarify who you are in the interview stage. The ability of an employee to identify their own strengths and weaknesses is a very popular interview question (and, indeed, desirable skill). Such honesty about your probation may not only be appreciated, it may actually help you stand out.

3.14 What If There Is No Probation Period?

As previously discussed, a probation period enables an employer to terminate the contract of an employee who is not performing to the expected standard within their new job/role or is otherwise deemed not suitable for the particular job/role.

Whether or not this empowers employers to abuse their employees by, without warning, terminating their contract before the probation period has ended is open for debate.

To this end some organisations, to avoid the potential issues arising from the termination of a new employee, are waiving the probation period entirely.

Instead, these organisations are conducting multiple interviews of the new employee, under a variety of conditions and over a period of time, before making the final decision to hire.

The reader should note that employment can be terminated within the first two years of employment (since April 2012) regardless of whether an organisation uses a probation period or not (notwithstanding the principles outlined in Section 1.9).

3.15 Pregnant Employees and Poor Performance

An employee has no absolute right to be confirmed in post just because she is pregnant if her work performance is not of a satisfactory standard and the reason for this is wholly unconnected to her pregnancy.

If the employer wished to dismiss the employee due to ongoing poor work performance, it would need to ensure that it had the evidence available to demonstrate to an employment tribunal that the employee’s pregnancy played no part in the decision to dismiss. This might, for example, take the form of:

• Minutes of meetings with the employee where her performance was discussed on an ongoing basis; and/or
• Details of reasonable targets set but not achieved and evidence of mistakes made.

The employer would also need to be confident that the employee’s pregnancy was not one of the causes of her poor performance. For example, if the issue is her attendance record, it could be that her sickness absence is predominantly pregnancy related. Regardless of her length of service, dismissing an employee for reasons related to her pregnancy will constitute pregnancy and maternity discrimination and unfair dismissal.

If the employee establishes a prima facie case of unfavourable treatment from which a tribunal could properly draw an inference that the treatment was because of pregnancy, the burden of proof shifts to the employer to prove that there was some other non-discriminatory ground for the treatment. If the employer fails to show there was no discrimination, the tribunal must uphold the employee’s complaint. This is why it is so important for the employer to have evidence to support its case.

Because she is pregnant, the employee would have a statutory right to receive written reasons for her dismissal.

PART FOUR: IMPARTIAL ADVICE AND REMEDIES

There are a variety of organisations that can provide professional and impartial advice and guidance regarding employment, and probation periods specifically.

A number of these organisations are outlined below.

4.0 Problems with the Probation Period

If an employee has a problem with the probation period, they could:

1. Try to solve the problem with their employer internally and informally, i.e. by speaking to their line-manager.
2. Try to solve the problem with their employer internally and formally, i.e. take out a grievance against their employer (employees should follow the employers grievance procedure).
3. Try to solve the problem with their employer externally and formally, i.e. through a mediation service.
4. Take a case to an employment tribunal as a last resort. In Northern Ireland, a case would be taken to an industrial tribunal.

4.1 ACAS

The Advisory, Conciliation and Arbitration Service, commonly known as ACAS, is one of the UK’s leading impartial authorities on workplace relationships and effectiveness.

ACAS provides employers and employees with a combination of digital, practical and expert services, in relation to the workplace.

4.2 Chartered Institute of Personnel and Development

The Chartered Institute of Personnel and Development, commonly known as the CIPD, is the body for human resources (HR) and people development, setting professional standards and providing impartial research for the media and policy makers (CIPD, 2018).

In general, employers require their HR personnel to be members of this body, or working towards membership (usually at entry-level).

As well as adhering to a code of conduct, all professional members of the CIPD must demonstrate that they have the technical knowledge, skills, behaviours and experience outlined in the current body of knowledge - the Profession Map. Members are also expected to display situational judgement, social responsibility, and a commitment to continuing professional development (CPD) (CIPD, 2018).

If HR personnel are aware that their employer is not following ‘the rules’ regarding probation, or are complicit themselves, an employee (current or former) may have cause to refer the HR professional to the CIPD.

4.3 Citizen’s Advice Bureau

The Citizen’s Advice Bureau (CAB) provides free, confidential and independent advice to help people overcome their problems, in this instance employment problems.

CAB provides advice and guidance face-to-face, over the phone, and by email, and two in every three people who seek their help have their problem solved.

CAB can provide advice and guidance with (amongst others) dealing with problems at work, early conciliation, settlement agreements, employment tribunals, and dealing with grievances at work.

4.4 Employment Solicitors

The Employment Lawyers Association (ELA) is an apolitical organisation representing employment lawyers in the UK.

For employees or employers looking for advice or representation by an employment lawyer, the ELA has a handy database found here.

The Law Society of Scotland provides a similar service.

4.5 Employment Tribunals

An employment tribunal is an independent tribunal which makes decisions in legal disputes around employment law. They are responsible for hearing claims from people who think someone such as an employer or potential employer has treated them unlawfully.

The process in England and Wales is slightly different than Scotland, and Northern Ireland has its own process.

In general, an employee will have been expected to exhaust all other avenues before turning to an employment tribunal for settlement.

On 26 July 2017, the Supreme Court ruled that the regulations introducing tribunal fees in July 2013 were unlawful and employment tribunals stopped accepting fees with immediate effect. The UK Government opened a fees refund scheme on 15 November 2017. Claims for refunds can be submitted by any employee and employer that paid Employment Tribunal or Employment Appeal Tribunal fees between 2013 and 2017.

PART FIVE: MISCELLANEOUS

5.0 What Employment Rights Do Individuals Have?

List A: Principal rights available to all workers:

• National Minimum Wage Act.
• Working Time Regulations.
• Equal Pay Act, Sex Discrimination Act, Race Relations Act, Disability Discrimination Act, and regulations prohibiting discrimination on grounds of religion or belief, sexual orientation and age.
• Part Time Workers (Prevention of Less Favourable Treatment) Regulations.
• Whistleblowing provisions in the Employment Rights Act.
• Provisions dealing with the right to be accompanied at grievance and disciplinary hearings in the Employment Rights Act (The reader should note that statutory dispute & grievance procedures do not apply to workers).
• Provisions restricting the right of an employer to make deductions from wages in the Employment Rights Act.
• All their rights as defined within the agreement offered.

None of these rights carry a qualifying period of service.

List B: Principal rights available only to employees:

• Right not to be unfairly dismissed*.
• Right to a redundancy payment and to paid time off to look for alternative work*.
• Right to an insolvency payment.
• Right to receive written particulars of employment*.
• Right to an itemised pay statement.
• Right to a statutory minimum period of notice*.
• Right to the benefit of statutory minimum procedures for grievances and disciplinary matters.
• Rights to maternity leave and time off for dependents.Rights to adoption, paternity and/or parental leave*.
• Right to request flexible working*.
• Right to request to continue working beyond retirement age.
• Rights under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations.
• Right to belong to a trade union.
• Rights to time off work for various statutory purposes including trade union duties and activities, public appointments and pension scheme trusteeships.
• Rights under TUPE (Transfer of Undertakings (Protection of Employment) Regulations).
• Protection from detriment for exercising certain statutory rights.
• Protection in relation to Sunday trading.
• Right to be informed and consulted about TUPE transfer and collective redundancies through representatives.

*These rights are only acquired after a specified length of service (see List C).

List C: Employee rights dependent on a qualifying period of service:

• The rights to a minimum period of notice and to a written statement of terms apply after one month’s employment.
• The right not to be unfairly dismissed applies after two years’ service for those who commenced employment on or after 06 April 2012 or one year if their continuous employment commenced prior to this date (except for certain categories of automatically unfair dismissal).
• The right to statutory: maternity pay (SMP); additional paternity pay (ASPP) or adoption pay (SAP) applies where the employee has been continuously employed for at least 26 weeks by the end of the: 15th week (i.e. the qualifying week) before the baby is due OR by the end of the week in which the child’s adopter is formally notified of being matched with the child for adoption.
• The rights to a redundancy payment apply after two years’ service.
• The rights to request flexible working apply after six months’ service (since June 2014).

5.1 Probation-Related Documents

Below is a list of documents that may prove useful for both employers and employees (not an exhaustive list).

Policies:

• Probation Policy.
• Induction Policy.
• Performance Appraisal Policy.
• Recruitment and Selection Policy.
• Notice Periods Policy.
• Policy on Recruitment Referral Bonus Scheme.
• Equality, Diversity and Inclusivity Policy.
• Absence Management Policy (short- and long-term).
• Apprenticeship Policy.
• Internship Policy.

Contract Clauses:

• Probation Period Contract Clause.
• Sick Pay Contract Clause.
• Notice Period Contract Clause.

Letters:

• Letter Setting Out Probation Plan for an Employee.
• Letter Extending an Employee’s Probation Period.
• Letter Informing an Employee of Completion of a Satisfactory Probation Period.
• Letter Informing an Employee of Promotion.
• Letter to an Employee on Probation Following Internal Transfer or Promotion.
• Letter Inviting an Employee to a Meeting to Discuss Progress during Probation.
• Letter to an Employee Confirming their Dismissal for Poor Performance during a Probation Period.
• Letter Making a Formal Offer of Temporary Employment.
• Letter Making a Formal Offer of Employment.
• Letter Offering a Permanent Job to an Apprentice Whose Apprenticeship is coming to an End.
• Letter from End-User Organisation Offering Permanent Employment to Temporary Agency Worker.

Forms:

• Probation Period Assessment Form.

Contracts:

• General Written Statement of Particulars or Terms and Conditions of Employment.
• Specific Contract of Employment, e.g. entry-level employees versus senior managers.
• Apprenticeship Agreement.
• Job-sharer’s Contract.

Employee Handbook.

A list of useful publications, weblinks, and references can be found here.