Employees on Probationary Periods – What are their rights?

It’s often commonplace to have a probationary period for new employees as they join the business. As an employer, it is a useful way to ensure that the employee is right for the role and duties. For the employee, it can be a time to consider whether the role is right for them. However, it does not mean that the employees on probation are without any employment rights.


What are typical probation periods and how should they be used?

This trial period of employment is commonly from three to six months, although they can be as little as one week in short-term contracts. There can also be scope to extend these periods, for example if more training is needed.

Performance reviews at monthly periods throughout this time should be given as they are key to the opportunity for feedback. It gives both the employee and employer an opportunity to discuss any concerns and address them before the employee completes their probation. It really cannot be fair to suddenly decide that an employee is not suitable right at the end of the probation period, having had no discussions with them.

What rights do employees on probation have?

Probationary periods do not have special statutory status. In law, an employee’s length of service determines their statutory rights, not their probationary status. Employees who are on probation enjoy the same statutory employment rights as other staff, such as national minimum wage, statutory sick pay and rights under the working time rules.

Some family-related leave and rights also apply in the same way. Employees on probation are entitled to take time off for antenatal and adoption appointments. A pregnant employee on probation is entitled to maternity leave and may qualify for statutory maternity pay. She cannot be required to wait for her probationary period to end before starting her maternity leave.

Are probationers protected against unlawful discrimination?

Their rights are the same as other employees; therefore they are protected against unlawful discrimination, detrimental treatment for asserting a statutory right and automatically unfair dismissal.

This includes disability discrimination, so any employer with an employee on probation with a disability needs to make reasonable adjustments to allow them to work efficiently and comfortably.

What if you need to dismiss an employee during their probation?

Employees do not need a minimum period of service to claim that their dismissal was for an automatically unfair reason (such as for asserting a statutory right) or that it was based on unlawful discrimination. You need to ensure that, if you are dealing with a disciplinary or performance issue during a probationary period, particularly one that could result in dismissal, you demonstrate that you had genuine reasons and evidence for your actions. Therefore, following a process that includes an investigation and input from the employee is best practice before such cases arise.

What if an employee does not pass probation?

If an employee does not pass, you may have to terminate their contract. Here statutory notice applies as a minimum, but if your employment contract states a longer period you need to comply.

If you need to find out more probationary periods, the rights of employees on probation, or dismissals, contact us today


Alcoholism in the Workplace

How does your business handle alcoholism in the workplace? It’s a sensitive subject, but something that that employers are increasingly approaching us to assist with.

Do you know the steps for dealing an employee who may have problems with alcohol, or indeed another addiction? You should have a process in place that works with the employee to recognise that there is a problem, and put steps in place to rectify it.

Why is alcoholism in the workplace a problem?

According to HSE, alcohol is estimated to cause 3-5% of all absences from work. This equates to about 8 to 14 million lost working days – something your business can’t afford to ignore. As well as possibly losing you productivity and money, there is also a real risk from an employee doing their job under the influence. As HSE states, “Alcohol consumption may result in reduced work performance, damaged customer relations, and resentment among employees who have to ‘carry’ colleagues whose work declines because of their drinking.”

How do you know if it is a problem?

This is the most important element – at what point is someone’s possible alcohol addiction a problem to your business rather than an issue for their individual health? You need to set out, as a business, at what point and in what circumstances you will treat an employee’s drinking as a matter for discipline rather than a health problem.

Communication and the training of staff is an important factor here. You must let your workforce know your company policy on alcohol and other substances. Train your managers to recognise signs of alcoholism, general information about alcohol and health and what to do if they believe an employee’s personal situation is impacting on workplace.

What should you do if you believe an employee has an alcohol problem?

Once you become aware of the issue, you must keep accurate and confidential records of instances of where poor performance has caused a problem. You will also need to talk to the worker formally as early as possible.

Concentrate on the instances of poor performance that have been identified, and ask your employee the reasons for poor performance. You could question whether it could be due to a health problem, without specifically mentioning alcohol or drugs. If appropriate, now is the time to discuss your alcohol and drugs policy and the help available inside or outside of your organisation.

You can then agree future action and arrange regular meetings to monitor progress.

If you need further support with alcoholism in the workplace, talk to us today (contact page)

How should I manage Under-Performance?

When an employee is not performing as expected, it can cause a great deal of conflict and many problems within your business. It is not just the employee who is under performing that is the problem, as your entire workforce can very easily take exception and then morale and wider productivity becomes an issue.

So, before your business finds itself in that situation, what are the steps you must take?

Create a Performance Management System

A performance management system can help you identify problems with employees early on, and take steps to remedy them between the manager and employee. This early action will enable you to maintain harmony in your workforce, and stop issues escalating.

Regularly reviewing performance throughout your entire workforce gives you the earliest indicators of any possible under-performance and can create a better atmosphere to deal with these issues quickly and easily.

Solving Under-Performance Issues

If the performance management system does indicate a problem with an employee, your managers must support and coach them to improve their performance. Issues may be outside of the employee’s control, therefore practical actions must be taken to support the employee both in terms of their own work and these outside factors that may be affecting them.

Use an Enhanced Development Plan to support employees. Over a period of two or three months, arrange meetings with employee at least every fortnight to regularly review their progress and performance.

Taking It Further

If the above steps have failed to rectify the under-performance, than your business must then take formal action with the employee.

You must have a disciplinary or capability procedure in place to ensure that the right steps are taken to minimise any risk or miscommunication. Your managers must be well trained in this procedure, which should include the actions taken under the formal action. For instance:

  • Your first action may lead to a first written warning to the employee informing them of the performance problem, the improvement required and the timescale for achieving the improvement, as well as any support your business will provide.
  • The next stage may lead to a final written warning again outlining the problem and the actions that will be taken (ultimately their dismissal) if they do not improve.
  • The third and final stage if under-performance is still a problem will be their dismissal.

Does your business know how to recognise and manage under-performance? If you need support or a review of your procedures, contact me today.

The Most Common (and Expensive!) HR Mistakes You Can Make

I often find the same problems in most of the companies I work with; and they are often very easily rectified. Here are my top three common HR mistakes, and what you can do as a manager to make sure they don’t apply to you!

1. Missing out on expert advice

In my experience, HR managers often feel they have to deal with situations themselves and miss out on valuable advice, particularly with regards to Occupational Health. You don’t know how much you can pry into the details of an employee’s illness, for example, and therefore you can be guilty of letting the problem get out of hand. Making the wrong call can be an expensive one, increasing the risk of a tribunal claim.

Securing the right HR, legal or medical advice at the right point not only helps you, but referring someone to an expert can also nudge the employee themselves into action.

2. Avoiding difficult performance conversations

People often contact me first and don’t speak to the employee themselves. You need to stop being kind and manage the situation.

Not talking about your concerns with an employee early enough, or with enough authority, can lead to more problems later. This can also seriously impact on your credibility within the business. Your team will get fed up of carrying an employee who isn’t performing as well – and you will get the blame. You need to manage your credibility as well as the employees within your team.

3. Brushing off Banter

This can be something as innocent as a Birthday or Retirement card, but it still has the potential to offend. Comments about peoples’ ages, mentioning that it’s time to retire, sexual innuendo, and so on; may be intended to amuse or provide a bit of light hearted entertainment but you must make your staff aware that even the simplest things can often cause offence in the workplace. I had an example of this recently with a simple retirement card. Comments that were made in jest actually caused the employee offence.

You need to be aware of the implications of workplace banter and put training in place so your staff are aware too. Banter can very easily turn into harassment.

If any of these apply to you (and I’m sure that they will) talk to me today to make sure the policies, procedures and training are put in place so they don’t result in increase costs and issues further down the line.

For more on common HR mistakes, read this article from the CIPD

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