As reported in our blog The 2024 General Election result: What does it mean for HR and Employment Law? the Government outlined its proposals before the election for employment law changes in its ‘Plan to Make Work Pay’, which they described at the time as the biggest upgrade to rights at work for a generation.
One of the proposals that has caught the attention of many employers and HR professionals alike is the promise to introduce “basic individual rights from day one for all workers”, including making the right to claim unfair dismissal a day one right.
With such major potential change in the pipeline, this is a critical time for employers to prepare. But given the Government has promised a “full and comprehensive consultation” before implementing new legislation, the proposals are naturally subject to change. So what can be done at a practical level to ensure we’re ready? Helpfully, the Plan to Make Work Pay document included a statement that the ‘new deal for working people’ will not prevent fair dismissal for reasons of capability, conduct or redundancy or “probationary periods with fair and transparent rules and processes”. The pre-election promise was that the Government will ensure employers can operate probationary periods to assess new hires but that newly hired workers will not be fired without reason or cause.
Probationary Periods are likely to be Quite Important Then?
Absolutely. Probationary periods have and will continue to be an essential tool for both employers and employees to evaluate the suitability for a role. A well structured probationary period can protect companies from potential claims, ensuring that both parties have ample opportunity to assess compatibility and performance.
Understanding Probationary Periods
Think of the probationary period as a trial phase at the beginning of an employment contract, typically lasting between three to six months. During this time, both the employer and the employee can assess whether the employment relationship meets their expectations. For the employer, it’s a chance to evaluate the employee’s performance, conduct and fit within the company culture. For the employee, it’s an opportunity to decide if the role and the organisation align with their career goals and values.
How do Probationary Periods Work in Practice?
First and foremost, there must be reference to the probationary period in the contract. Technically (as detailed in our Employment Contracts: Essential Updates for Employers blog) the ‘Principal Statement’ (part of the Written Statement of Employment Particulars) must include ‘how long any probation period is and what its conditions are’.
We’ve already said that probationary periods often last between three and six months. But what might the conditions be? Things to consider include:
- Might you wish to extend the probationary period in certain circumstances?
- What will happen if you consider the employee to be unsuitable?
- How much notice will you provide if you decide to terminate the new starter’s employment during the probationary period?
- Will you allow the new starter to take holidays during this time?
- Will you apply your full capability and disciplinary procedures?
How can suitability be assessed?
Begin with clear communication and setting clear expectations – this starts during the recruitment process. Doing so will significantly increase the likelihood of making a quality hiring decision.
Once you’ve selected the right person for the job, outline the expectations, objectives, and criteria for assessment during the probationary period right from the start. This should also include a good quality induction.
Things to be clear on will include job responsibilities, performance standards and behavioural expectations. Regular check-ins and reviews during the probationary period are critical for providing constructive feedback, nipping issues in the bud and addressing any problems promptly.
Documentation is also important. Ensuring you keep detailed records of reviews, feedback sessions and any support or training provided will be critical in the event of a dismissed employee submitting a claim.
Setting-up the New Starter for Success
The focus of the probationary period should be on setting up your new starter for success (whilst having the relevant safety nets in place to pick up issues if all does not go as you’d planned).
In addition to the induction programme, think about what support and development your new starter might need.
Reviews
As stated, regular reviews should take place during the probationary period and these should be documented. A formal review should be conducted just prior to the end of the probationary period to make a final decision about the employee’s future with the company. If the decision is to confirm the employee in their role, this should be communicated clearly, along with any ongoing performance expectations. If the decision is to terminate the employment, it should be done in a manner consistent with the company’s policies, ensuring fairness, transparency and compliance with the law. You may feel you need to give the employee more time to prove themselves so that you can reach a fully informed decision. In this case, you would extend the probationary period (assuming you’ve got the contractual right to do so), detailing the length and conditions of the extended period.
Summary
Probationary periods are not new, but with the potential introduction of the right to claim unfair dismissal from day one of employment, their importance takes on a whole new significance.
Our top 3 tips whilst we’re waiting for confirmation of the detailed changes that will be introduced are:
- Review your recruitment process and focus on how you can consistently attract and hire the right people.
- Review your onboarding and induction arrangements – this is a critical period for clear communication and setting expectations.
- Review your contracts of employment in relation to probationary periods and set-up a clear approach of how they will work in your organisation.
Implementing these three methods consistently can lead to significant improvements in team performance. Remember, the key is to push through initial resistance and make these practices a regular part of your routine.
As you begin to apply these strategies, we’d love to hear about your experiences. What challenges did you face? What successes did you achieve?
Get in touch and see how we can support you.