Probation periods ñ employment law QandA

Graham McWilliam, managing director of Empire HR provides information and advice in relation to probationary periods.

Q. One of my employees is approaching the end of her six month probation period. I donít want to terminate her contract but Iím not completely happy with her performance; can I extend her probation period for a further six months?

A. An initial probationary period is recommended for any new start employees. Most employers allow for a three month probationary period but this can be longer depending on the training and skill sets required to undertake the role. Throughout the probationary period the employee should be made aware of the performance and behavioural standards expected.

If after six months, the employer still has some concerns in relation to the employeeís performance, the probationary period can be extended but it is recommended this be done on a month by month basis. The employer should have an accurate assessment of the employeeís performance after six months and unless there has been a requirement for large amount of training, it is recommended the employer makes a decision in relation to the employeeís future employment as soon as possible thereafter.

Prior to the end of the probationary period, the employer should meet with the employee and consider whether h/she has attained the necessary standards and therefore successfully completed the probationary period or, whether the employee still requires further coaching or training to achieve the necessary standards.

If the employer believes the employee is unlikely to attain the necessary standards and that h/she has been provided with all the necessary support and training, consideration may be given to terminating the contract at this time. It is recommended that a probationary period should not be a year or more in length.

Q. I took on a new employee just over two months ago. Her employment contract does not include any mention of a probation period, can I insert this retrospectively?

A. It is not possible to retrospectively apply a probationary period as a condition of continuing employment. A probationary period must be in writing and the employee should be advised of the probationary period prior to or on commencement with the company. The probationary period should be confirmed within an offer letter or in the Contract of Employment/Written Statement of Particulars. Any extension of the probationary period should be confirmed in writing prior to the expiry of the probationary period.

Q. I am thinking of promoting one of my employees. Can I make a probation period a condition of the promotion?

A. A trial period could be agreed with the employee to be promoted prior to them taking up the new position. This may be applicable where there is an intensive period of training required or a steep learning curve for the employee. It is imperative that the training requirements are discussed with the employee and targets set so that they are clear on the standards they are required to attain and the time frame for doing so. The employee should be made aware of the consequences of not attaining the necessary performance standards.

Employers should take care in managing an existing employee through a trial period as this is not the same as a probationary period for a new start employee.

Q. I am planning to terminate an employeeís contract ñ do I have to wait till the end of his six month probation period to do this?

A. Within the offer letter or contract of employment the employer should make it clear that they reserve the right to extend the probationary period or to terminate the contract during the probationary period if the employee is not meeting the necessary performance or behavioural standards ñ these standards must have been clearly identified to the employee.

Q. I recently employed a new member of staff and to date I have been extremely pleased with her progress. I am confident that she will become a key member of my team and would like to curtail her probation period in recognition of the contribution she has already made. Is it OK to do this?

A. Although standard practice is to allow the probationary period to continue through to its expiry, an employer could confirm successful completion of the performance and behavioural standards at any time. Employers should ensure that they treat all staff consistently depending on their performance and behaviour throughout the probationary period.

Empire HR provide commercially focused employment law and HR support service including a telephone advice line, HR Consultancy, employment tribunal insurance and health and safety support for businesses across Scotland. Empire HR can be contacted on 01224 701383 or at www.empirehr.com.