The Crucial Role of Probationary Periods in Safeguarding Companies from Unfair Dismissal Claims

With the new Labour Government's plans to increase employee rights, which includes making the right to claim unfair dismissal a day one right, this is a critical time for employers to prepare.

So far, we have looked at recruitment and the importance of having robust and commercially sound HR documents in place such as, contracts of employment, job descriptions and HR policies and procedures.

In this month's insights, we are going to be looking at probationary periods.

In today’s competitive business environment, hiring the right talent is critical for a company’s success. However, even with rigorous recruitment processes, it’s possible to onboard an employee who may not be a perfect fit. This is where probationary periods come into play, serving as an essential tool for both employers and employees to evaluate suitability for a role. A well-structured probationary period can protect companies from potential unfair dismissal claims, ensuring that both parties have ample opportunity to assess compatibility and performance.

Understanding Probationary Periods

A probationary period is 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 overall 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.

Mitigating Risks of Unfair Dismissal

As mentioned earlier, at present, employees need to have a minimum of two years’ continuous service before they can bring a claim for unfair dismissal.  This will become a Day One right and will therefore place a greater emphasis on the importance of a robust probationary process.

During the probationary period, employers can closely monitor an employee’s performance and behaviour, providing regular feedback and support to help them succeed. If, despite these efforts, the employee does not meet the required standards, the employer can terminate the employment with relatively less risk of an unfair dismissal claim, provided the process is handled correctly and in line with the contractual terms.

Setting Clear Expectations

A robust probationary period begins with clear communication. Employers should outline the expectations, objectives, and criteria for assessment right from the start. This includes detailing job responsibilities, performance standards, and behavioural expectations. Regular check-ins and performance reviews during the probationary period are crucial for providing constructive feedback and addressing any issues promptly.

Documentation is another critical aspect. Employers should keep detailed records of performance reviews, feedback sessions, and any support or training provided. This documentation serves as evidence that the employer has given the employee a fair chance to improve and has followed a transparent process, which is vital in defending against any potential claims.

Providing Support and Development

Probationary periods should not solely focus on identifying shortcomings but also on providing support and development opportunities. Employers should invest in onboarding programmes, training sessions, and mentorship to help new hires integrate smoothly into the company. A supportive environment increases the likelihood of the employee meeting the required standards and reduces the risk of termination.

Moreover, a structured probationary period demonstrates the company’s commitment to its employees’ growth and development. This approach not only helps in retaining talent but also enhances the company’s reputation as an employer of choice.

Making Informed Decisions

At the end of the probationary period, a formal review should be conducted 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 and employment laws, ensuring fairness and transparency.

Probationary periods are a critical component of the employment process, offering significant benefits to both employers and employees. For employers, they provide a safeguard against the risks of unfair dismissal claims, allowing for a thorough evaluation of an employee’s suitability without immediate legal consequences. For employees, probationary periods offer a chance to prove their capabilities and assess their fit within the company.

By setting clear expectations, providing support, and documenting the process, employers can ensure that probationary periods are effective and fair. Ultimately, a robust probationary period helps build a stronger, more competent workforce, contributing to the overall success and stability of the organisation.

For our lovely HR Pulse clients, rest assured, all our resources, tools and HR documents will be updated to reflect the latest changes in employment law.  As a reminder, we have a fabulous Probationary resource tool and documents.

If you are not yet one of our lovely clients, and would like to find out more about HR Pulse, then please click on the GET IN TOUCH button above for further details.

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