The Ins & Outs of a Probationary Period
Our guest blogger Claire Nisbet is a Senior Solicitor in the Employment and Pensions team at Maclay Murray & Spens LLP. Whilst advising employers and employees on a wide range of employment issues, Claire specialises in advising clients on contentious employment, discrimination and equal pay matters.
Claire is the Treasurer of the Scottish Discrimination Law Association, a Committee Member of Scottish Women in Business and a Board Member of Graphic Enterprise Scotland, the Trade Association for Print Employers in Scotland. Since April 2015 Claire has acted as Assistant Editor and Research Assistant on the 3rd Edition of Employment Tribunal Practice in Scotland (Simon and Taggart), the only distinctly Scottish reference work of its kind.
What is the meaning of a “probationary period”?
There is no legal definition of (or requirement for) a “probationary period", although the term is generally understood to mean a period of time at the commencement of employment during which an employer can assess the employee's ability and suitability for the role. A probationary period can be useful, although should be considered as nothing more a management tool. There is no prescribed length of probationary period as this will depend very much on the nature of the job. A 3-6 month period is not uncommon.
Probationary period myths
There is a common misconception that employers have carte blanche to treat employees however they like during a probationary period. However, no service at all is necessary for an employee to bring a claim alleging, for instance, that they have been discriminated against; dismissed for some reason related to health and safety or because they have “blown the whistle”.
In terms of notice, an employee who has been employed for more than one month but less than two years is entitled to at least one week's notice of termination whether or not there is a probationary period or that period has been successful (contractual notice may be more than the statutory minimum).
It may be thought that an employee's continuous service only begins after the probation period is over. This is incorrect. Employment starts from the employee’s first day of work, as do their contractual rights. Having said this, although an employee’s statutory rights cannot be altered, the employment contract may state that certain contractual benefits commence once the probationary period has been successfully completed.
Terminating employment during or at the end of a probationary period
While an employee will require to have continuous service of two years or more to bring an ordinary unfair dismissal claim, it is best employment practice to follow some form of procedure prior to dismissing an employee. For instance this will ensure that there is a record of the dismissal and the reasons for it should any challenge be presented at a later date. Employers should also check any contractual position about procedure for dismissal.
Implementing effective probationary periods
Regular review meetings should take place during a probationary period to allow any initial performance issues to be addressed, or specific goals to be discussed. Feedback should be given to the employee on their progress and whether or not they are meeting the employer's expectations. A written record should be kept of feedback that is given to the employee, a copy kept on the employee's file and a copy given to the employee.
It is also sensible to ensure that there is a positive obligation on the employer to confirm that the probationary period has been completed successfully. This will reduce the chance of an employee successfully completing their probation "by default" simply because the end of the period comes and goes without being noticed or addressed.
The probationary period can be extended to give the employer more time to assess employee’s ability and/or give the employee more time to improve their performance.
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