May 10, 2016
The idea of the probation period is to assess if an employee is suitable for a role and the business. Viewed as a ‘trial run’, the employer decides on the length of probation which is outlined in the contract. This can range from weeks through to months. It may come across that during this period the employer holds all the power and control in deciding whether that employee it the right fit for that role, however, appropriate and reasonable treatment must still apply.
Rights
During the probationary period the employee can still be exposed to the same statutory employment rights as post-probation employees. It is essential that employers are aware that treatment must always be reasonable and appropriate allowances made for the person starting a new role. Taking my HR head off for a minute, a manager must try to empathise with a new starter allowing them to take time to fit in with the company and actually learn the role and demonstrate the skills that they had already been hired on the back of.
Even though we have discussed how employers must be treating employees on probation with appropriate levels of respect and allowance, let’s not kid ourselves. The power still lands predominantly with the manager! At any point they have the prerogative to terminate an employee on probation with minimal notice. This however could result in an employee claiming their dismissal was unfair and/or discriminatory.
Pass, Fail or extend?
On to the next confusing, grey area surrounding probation. Pass, fail or extend? An extension of a probation period cannot simply be applied if the employer is unsure of an employee’s performance. It is not a way of merely buying time. It can be applied however if the employees performance is directly in breach of or not in line with the duties outlined in the original contract signed.
The employer has the autonomy to decide whether a probationary period is passed, failed or extended. This decision must be carefully arrived at with full consideration made for the employee. Do employers just use this time frame and lack of notice period needed to terminate people without considering all aspects of the case? Employers made come to the decision to fail or extend through the employee’s skill set and fit culturally within the culture.
Top tips
Popping my HR head firmly back in place, the advice I would give to employers is to ensure clauses relating to termination and extension are clearly documented in the employment contracts. Even though the employer has the right to terminate with minimal notice period, it is also important they provide a fair opportunity to allow the employee to demonstrate their suitability. This suitability can depend on skill level and culture fit. Taking all these aspects into consideration, courts appearances could be reduced and hopefully avoided.
It only seemed fair to give employees some advice too. I would always say in documenting all conversations and any incidences through the probation period as well as successes, these can be used as evidence at probation meetings to prove why you are suitable and should pass probation. On the other hand, this documentation could also be used as evidence if any future claims are brought to light.
