Probation Notice Period – dealing with probation period issues

When you hire a new staff member, you’re excited and full of hope that they’ll be the perfect fit for the role and your small business. However, sometimes the reality can differ, even if a candidate appeared to be the ideal fit during the interview stage, after a few weeks or months, you can feel that the new recruit isn’t the right employee for you, your wider team, and the business itself.

January was claimed as the start of The Great Resignation, so undoubtedly this will mean a lot of people have started new roles recently. For small business managers this will mean you’re likely to be onboarding new staff and working with them closely to ensure they’re up to the job you hired them for.

We’ve taken a look at some of the top queries that are often asked about by our customers during probation periods and here are tips on how you can handle them….

A new hire has been off sick a lot during their probation period and I want to dismiss them. What can I do?

You can dismiss an employee during their probation for reasons such as poor performance, bad behaviour, or persistent lateness or absence from work, but bear in mind that there may be an underlying problem for the sickness absences, such as a disability. We would advise that you get the full picture around the reasons for sickness from the employee before coming to a decision on dismissal. Dismissals related to sickness and disability can bring a claim against you as an employer and land you in an employment tribunal – so you’ll need to be sure that this is the right course of action and have evidence to support your choice.

An alternative could be to extend the probation period to give you more time to review the employee. This can be a good way to give the employee more time to show that they can do the role and what they demonstrated at interview was true. By offering an extension it also gives the employee an opportunity to make up for lost time. We’d recommend you put the extension in writing, confirming how long the extension is for and when you’ll next review their progress, giving a second chance for the employee to prove their suitability for the role.

My employee is pregnant and is in their probation period. Can I dismiss?

There are some circumstances in which you can terminate the employment of a pregnant employee in their probation period.  But this has to be related to them not having the skill set required for the role, or due to being negligent or incompetent in their performance of tasks. It is also possible to dismiss for gross misconduct.

For example, if you’ve just hired a software developer and have found out they are pregnant, but it also becomes apparent that they do not have the required level of experience in one of the programming languages you required, this could be grounds for dismissal.

You’ll need to ignore pregnancy related absence or lateness for the purposes of taking any formal action in relation to attendance.  We would also advise that it isn’t used as the sole reason to extend the probation period. This in itself could be a detriment to the employee and could open your decision to being challenged.  Therefore, there will need to be some task-based reason to justify not confirming the employee in post.

My new hire has lost their driving licence and they need to drive to do the job. What does the law say about giving them notice?

As the employee cannot physically carry out the job they have been newly hired for, you can give them notice to terminate their employment with you.  They are entitled to the notice period you have said will apply during their probation period in their employment contract.  This will often be shorter than if they had completed their probation period successfully, and you can also include in their contract that you don’t need to give any notice in the first month of their probation period.

If need be, you can consider paying them in lieu of notice, or PILON for short. This means that you can end the employment before the employee serves their notice, but still pay the employee for the full notice period.

What do I do if an employee on their probation period who handles confidential information isn’t working out and I want to dismiss them?

When writing contracts for employees who handle confidential information, we usually advise employers to include a ‘garden leave’ clause in their contract. Then, if you need to dismiss that employee, even during their probation period, you can require them to serve their notice away from the workplace and without doing any work for your company. They will then still be employed by you and bound by their contractual obligations regarding confidential information.

You will still need to pay them for the full notice period specified in their employment contract.

Can I dismiss an employee in their probation period if I need to make redundancies?

After the last couple of years of restrictions, many small businesses have been affected and unfortunately some have had to make cuts. Redundancy is a fair reason why, you may need to dismiss an employee, whether that is due to business closure, workplace closures, or less requirement or workload for employees being needed.

We would always advise caution about taking on new hires if you’re evaluating whether you might need to make cuts in some areas. But if you do take on someone new and then redundancies need to be made, it is best to be as fair as possible in your redundancy process and to signpost this to your new employee as early as you can., This will reduce the risk of any claims of unfair dismissal. You would also need to be particularly careful, for example, if a new employee is pregnant or disabled.

There are some tricky scenarios that can crop up during probation periods for new hires but it’s important to remember that probation periods are there for both the employer and employee., Either party can end their employment during this time as long as they give notice in line with what was agreed in the employment contract, if things don’t appear to be working out.

The probation notice period must be no less than the statutory notice period of one week following the first month of employment, but during the first month of the probation period, as employers you don’t have to give any period of notice, provided that your employment contract does not specify anything different.

It’s important to set up probation periods carefully in your employment contracts with clear wording, so that new hires know where they stand, particularly on how much notice they will be entitled to if things don’t work out during that period.

You can find out more general information about probation periods and how can you make the most of them as an employer, here.

The content of this blog is for general information only. Please don’t rely on it as legal or other professional advice as that is not what we intend. You can find more detail on this in our Terms of Website Use. If you require professional advice, please get in touch.