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Managing Probationary Periods

12/07/2016

Many Companies adopt a probationary period when appointing new employees.  By setting a probationary period a newly recruited employee is aware that their performance will be under continuous review during the first few months of employment and that continued employment is subject to satisfactory completion of the probationary period.

The length of a probationary period should depend on the position and the Company's requirements.  A role requiring a high degree of skill and responsibility is likely to have a longer probation than one with limited skills or responsibilities.  Probationary periods are typically between three and six months.

Probationary periods have no legal status and an employee who is on probation has the same statutory employment rights as any other employee. It is the length of continuous employment that defines an employee's statutory employment rights.

We recommend giving less generous contractual terms during a probationary period than those that apply once the probation is completed, i.e. a shorter contractual notice period or access to benefits. Any differences in contractual terms must be clearly set out in the contract.

Where an employee has not reached the required standard of performance by the end of their probation but the Company recognises there is still potential for improvement, you can choose to extend the probationary period. You would only be able to do this if you have a contractual provision in the contract. Any extension to the probationary period must be confirmed to the employee in writing, confirming the new end date but also that the contractual provisions that apply during the probation will continue to apply during this extended time.

The Company may choose to dismiss an employee for failing to complete the probationary period satisfactorily during or at the end of the probationary period. Don't get caught out and let the end of probationary period pass without confirming either that the employee has satisfactorily passed their probation,  you are going to extend it or that you are going to dismiss them.  If you let the end of probation pass without notifying the employee one way or another, then the employee can assume they have passed and if you subsequently want to dismiss, the notice period would be whatever the contract states for after the probationary period. To stop this happening, you may want to add some wording to your contract which says their probationary period is deemed to be extended until such a time as it is confirmed in writing by the Company that they have successfully completed it. Even if you have this in the contract you must still monitor the probationary period and confirm, as soon as possible after the probation has ended, the Company's decision.

Fiona Haworth. You can contact Fiona on fiona@practical-hr.co.uk


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