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If probationary periods are used effectively, they can be an extremely useful tool for employers to identify whether a person is the right fit for an organisation and for the role they were appointed to.
During probationary periods the length of the notice period should also be relatively short, usually a week, increasing to somewhere between one and six months once the probationary period has ended. This enables employers to exit an employee who is not the right fit relatively quickly. Eligibility to receive certain benefits such as gym membership, private medical insurance or participation in share schemes should only apply at the end of the probationary period.
This probationary clause should include permission for it being extended if you need extra time to address them or they have been absent. You should also state you will confirm satisfactory completion in writing.
The reality however is that some employers either do not have probationary periods in place or managers fail to use the period of time effectively. As a result, individuals will often reach the end of their probation and simply continue in their role. If the clause is not properly drafted then this can create complications. However in the absence of any previous employment counting as continuous employment, an employee will usually not have sufficient length of service following the end of a probationary period to bring a claim for unfair dismissal.
Currently there is a two year qualifying service period to bring unfair dismissal claims. Therefore as long as you dismiss someone before 23 months of service you should be able to avoid an unfair dismissal claim. Having said that it is important to make clear no service is required for discrimination claims.
Probationary periods arguably have less value than they did when the service required to bring unfair dismissal claims was less than two years. However there is still a place for probationary periods and we should still recommend including them in contracts and monitoring the employee's performance during this period to decide if they are the right fit after all.
Pam Loch, Managing Partner of niche employment law practice, Loch Associates Employment Lawyers and Managing Director of HR Advise Me Limited.
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