Probation reviews and dismissals

New government plans to give employees important protection from the first day of employment may not make a difference to employees who fail to make a good early impression in any job.

It was confirmed, as anticipated, during The King’s Speech that Labour plan to provide protection for employees from unfair dismissal from day one of employment [1] cited 23.7.24

The recent speech, delivered by King Charles, introduced significant changes to employment law, particularly through the new Employment Rights Bill.

It is said to be Labour's broader agenda to improve working conditions and ensure fair treatment for all employees.

This bill aims to enhance workers’ rights, and includes a number of measures along with day-one rights for unfair dismissal, subject to a probation period.

It means that while employers can still operate probationary periods, employees will have stronger protections against unfair dismissal from the start of their employment  [2] cited 23.7.24

The New Deal set out in Labour’s election manifesto does state [3] This will not prevent fair dismissal, which includes dismissal for reasons of capability, conduct or redundancy, or probationary periods with fair and transparent rules and processes. Cited 23.7.24

We will ensure employers can operate probationary periods to assess new hires. However, the changes will help to ensure that newly hired workers are not fired without reason or cause and will help drive up standards in workplaces.

The probation period seems as if it will continue to provide both employer and the employee with reasonable time to work together to establish and determine if any employment arrangement is essentially the right fit.

During the period, an employer is required to focus on supporting the employee’s integration into its organisation while at the same time assessing the new recruit’s performance in the role.

Employees, in turn, can also use the time to evaluate whether or not the job and the employer are in fact a good fit for them.

At the conclusion of the probation period, a final review meeting should take place. It should be a two-way conversation in which a manager and the member of staff discuss performance and progress.

The meeting  provides an opportunity to identify any specific support that may be needed, and to decide if the employee will be retained on a permanent basis.

An employer can currently dismiss an employee at any time during their probation period, as long as it is for a fair reason. However, it is important to note the employee does still have certain rights, which are limited, that an employer must respect when managing the probation period and conducting a review.

Under the new government plans employers will be able to continue to use probationary periods to assess new hires although no detail is yet available on how this will work and how long those periods can last.

The probation period can lead to difficult decisions, including dismissals. Here we explore the best current practices for conducting fair probation reviews and handling dismissals during what is a critical phase of the employment relationship.

Understanding the probation period

By law, there are a number of things that must be included in a 'written statement of employment particulars' [4] cited 23.7.24

The ‘principal statement’ must include any probation period, its conditions and how long it is for.

During the probation period, which typically lasts between three to six months, employers should evaluate the employee’s performance, skills, and fit.

It is a two-way process and employees also use what is essentially a trial period to decide whether the job meets their expectations and if they feel comfortable in the new working environment.

The importance of probation reviews

In most cases, probation reviews should be conducted both during and at the end of the probation period.

The reviews can be held along with, less formal discussions and one-to-ones between a manager and the employee.

Probation review meetings should discuss the employee’s performance, which is essential for a number of reasons:

• It can provide clarity and feedback. It is the ideal opportunity for clear communication about what the employee is doing well, and also to identify any areas of performance that require improvement.

• It can be used to set goals and expectations, which help to ensure the employee knows exactly what is needed to succeed.

• They are key in decision making. Review meetings help an employer to make a fully informed decision about whether to confirm the employee’s position, extend the probation period, or end the employment.

Conducting effective probation reviews

Best practice employers should follow to get the most out of probation reviews include:

• The decisions made are important so preparation for a review should be Fairly assess the employee’s performance, feedback from colleagues and any self-assessments they have completed. Good preparation will ensure an employer gets a comprehensive view of the performance.

• It may seem obvious, but a probation review can be unnerving for any employee so create a comfortable environment. Hold the review in a private and comfortable setting to encourage open and honest communication.

• Provide particular examples of what the employee has done well and identify areas where they may need to do better. Ensuring feedback is fair and constructive will help an employee to clearly understand how they can grow.

• It should also be a listening exercise. Allow the employee to share their experiences and feedback. Ensuring it is a two-way discussion helps to create a supportive environment.

• Make clear and detail what is expected moving forward, including any performance goals or areas for development.

Possible outcomes of a probation review

There are currently three main outcomes:

1. Confirmation: Where the employee has met or exceeded expectations, their position is confirmed, and they become a permanent member of staff.
2. Extension: Where an employee has not met expectations, the probation period can be extended, with additional support and clear goals.
3. Dismissal: Where the employee has failed to meet the required standards and there are no obvious signs of improvement, dismissal may be necessary. Such cases should be handled with care and sensitivity.

Handling probation dismissals

It is never easy to dismiss an employee during their probation period, and any decision to do so should not be taken lightly, even if it is considered best for both parties.

The Employment Rights Act 1996 sets out various scenarios in which an employee will be regarded as being automatically unfairly dismissed, this does cover dismissals during the probation period [5] cited 23.7.24

It means an employee can usually bring an unfair dismissal claim without having to show they have worked the currently required two years’ of service if they are dismissed for reasons, which include: any type of discrimination pregnancy or maternity, race, sex, age etc; whistleblowing for making a protected disclosure; or asserting rights under the Working Time Regulations or National Minimum Wage Regulations

Here are some key considerations with probation dismissals:

• Ensure that the dismissal process adheres to employment law and the terms of the employment contract.

• Clearly explain the reasons for the dismissal, providing specific examples of where the employee did not meet expectations.

• Handle the conversation with empathy and respect.

• Keep detailed records of the employee’s performance, feedback provided, and the reasons for dismissal.

Best practices for employers

Set clear expectations from the start, clearly communicate job responsibilities, performance standards, and company culture during the induction.

Provide regular feedback. Do not wait until the probation review to provide feedback. Regular check-ins help to keep employees on track and  to address any issues before they escalate.

Offer support and training. Provide the necessary resources and training to help employees succeed. This investment can pay off in improved performance and retention.

Create a positive work environment. Provide a supportive and inclusive working environment in which employees feel valued and motivated.

Finally

Probation reviews and dismissals are important aspects of the employment journey.

By conducting thorough and fair reviews, providing constructive feedback, and handling dismissals with care, employers can create a positive and productive working environment.