It is very common for employers to set a probationary period for new employees as a way to assess employees during the first few months of their employment. If you are subject to a probationary period and your employer considers that you do not meet the required standards, your employer may terminate, with notice, your employment contract. Whether you are able to challenge your employer’s decision to terminate will depend upon a number of factors.
Length Of The Probationary Period
The length of your probationary period is likely to depend on the nature of your job and how long it will take for your employer to assess your performance in order to confirm whether your employment will continue, but three or six months if fairly typical. You may find that your contract provides that, during your probationary period, your employment can be terminated on shorter notice (subject to minimum statutory notice) than the notice you will be entitled to receive once your probationary period is completed successfully.
Management Of The Probationary Period
It is fairly common for employers not to manage probationary periods effectively. Ideally, your probationary period should be structured to ensure that:
- You understand at the outset what is expected of you including, if relevant, any specific goals or targets to be met.
- Your employer should collate information on your performance regularly and ideally have progress meetings with you, rather than waiting until the end of your probationary period to confirm whether you are, or are not, meeting expectations. That way, you will have the opportunity to understand how you need to improve and have the time to do so.
- Your employer needs to decide whether to confirm your employment before the end of the probationary period. Otherwise, you may successfully complete your probationary period ‘by default’, simply because the end of your probationary period has passed without being addressed by your employer.
If you are in your probationary period and are not getting feedback from your employer or you feel you need support to meet the required standards then speak to your employer as soon as you can and certainly before the end of the probationary period.
Extending A Probationary Period
If you are failing to meet your employer’s expectations, your employer may want to extend the probationary period. Your employer can do so if it has a contractual right to extend the probationary period. Where there is no contractual right to extend your probationary period, your employer might ask you to agree to vary your contract to provide for this. You might be willing to agree to an extension if you think this will help you to remain employed. Refusal is likely to result in your employment being terminated.
Where there is an extension, your employer should make clear the reasons why this is necessary, i.e. what aspects of your performance or behaviour are letting you down and what you have to do to improve. Your employer should confirm the date on which your probation will now end. Feedback should be given throughout the additional probationary period.
What If I Am Absent During My Probationary Period?
You may have been absent due to illness, disability or maternity leave for example. It would be inappropriate for your employer to regard your performance as unsatisfactory because of your absence. Your employer should think about exercising any contractual right to extend the probationary period or, where no contractual right exists, getting your agreement to do so and for such length of time equivalent to your absence.
If your employer fails to extend, or offer to extend, the probationary period then you may be able to bring a discrimination claim, depending on the reason for your absence. For example, if you commenced maternity leave during the probationary period and your employer then confirmed your employment was being terminated on the grounds of performance, you may have a pregnancy/maternity discrimination claim, because you had not been able to prove yourself by working the entire probationary period.
Failing The Probation And Termination Of Employment
If your employer considers that you have failed the probation they can simply give notice in accordance with your contract to terminate your employment. Even if you feel this is unfair, you may be unable to take the matter any further. You can of course challenge the dismissal directly with your employer but if your employer will not reconsider there may be no grounds for an Employment Tribunal claim. Generally, an employee needs to have two years’ or more service before they are able to bring an ordinary unfair dismissal claim. For this reason employers often don’t bother to follow any sort of procedure when dismissing employees for failing their probation, although it is advisable to do so as this may help the employer to demonstrate the real reason for dismissal if challenged.
However, there are certain claims, for example, for automatic unfair dismissal and discrimination which do not require you to have any specific length of service before you can bring them. Therefore, if you feel that there are other factors at play there may be grounds to pursue the matter further with your employer or to make a claim. Please see the attached blog for further information https://lincslaw.co.uk/blog/unfair-dismissal-less-than-two-years-service/
In addition, if there is a contractual disciplinary or capability procedure applying to your probationary period and your employer fails to follow it, this could result in a breach of contract claim.
Lincs Law Employment Solicitors Can Help You
If you have any concerns arising out of your probationary period or dismissal following a probationary period please contact us for a free enquiry on 01522 440512 or via the web chat or contact form on our website at www.lincslaw.co.uk.
Kathryn Bolton
Associate
Specialist Employment Solicitor
Lincs Law Employment Solicitors
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