Probation Periods Underperforming employees

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

Indu

1. You can legally have a probation period for your employees if the details are specified in the contract of employment. The probation period only applies if the employee is totally new to the company.

In principle employees cannot claim unfair dismissal unless they have one years continuous service with your company. However, if they feel that their dismissal could be related to any form of unlawful discrimination then they can lodge an Employment Tribunal claim at any time.

My advice would always be that the dismissal of any employee at any time during their contract should be considered carefully as each individual case is different, and there are a variety of factors that might affect the action finally taken.

2. The correct procedure for addressing the problem of an underperforming employee does basically follow the same structure as the disciplinary procedure.

The procedure should be in place to help the employee perform to the required standard, rather than to dismiss them. In law, the employer must ensure that the employee ?

a) understands what is expected of them

b) understands in which areas they are not performing to the required standard

c) is given appropriate training and support

d) is given sufficient time to improve

They must be issued with warnings in the same way as in discipline and they have the same rights to notice and representation.

However this is never an easy process for employers, or employees, and the path is rarely straightforward. Once again it is best to seek advice on individual cases as following the correct procedure is all important.

Jayn Bond FCIPD

HR Consultant

Positive HR Ltd

Anonymous

Dear Ms Bond,

I notice in your answer above that you include the statement "...employees cannot claim unfair dismissal unless they have one years continuous service with your company."

1. Does this mean that employers can in fact treat their new employees unfairly for the first 11 months of their service with impunity?

2. Can they get away with making a new employees life unbearable without risking a claim of constructive dismissal?

3. Are there any measures in place to protect new employees - were any measures included in the Employment Act 2002 (Dispute Resolution) Regulations introduced in October 2004?

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

Sheila

Briefly ?

1. Yes and No !. If there is any element of unlawful discrimination then an employee can make a claim against the employer at any time. If an employer decides that they wish to dismiss a new employee within the first 12 months, and there is no discrimination, then they can. Even if they have treated them ?unfairly?. If they dismiss too close to 12 months then there is a risk that the Tribunals would decide to still hear a claim. An employee could take civil action for wrongful dismissal.

2. The answer is the same as above ? only where there is no discrimination. However it is open to an employee to take a civil action for personal injury or harassment ( for bullying perhaps which is not linked to current discrimination laws).

3. The Dispute Resolution Procedures were not made contractual, although it had been anticipated they might, and therefore they did not offer any greater protection to new employees.

Jayn Bond FCIPD

HR Consultant

Positive HR Ltd

Anonymous

Dear Jayn,

Thank you for your informative response. It has definitely clarified for me the current employment situation regarding this matter.

Kind regards,

Sheila

Anonymous

By civil action do you mean common law? I was hoping you may be able to shed some light on this.. should an employee's probation period end on on specific date and the employer does not inform them of an extension of it BY that date has the employee passed it by default?

Best regards

Karl

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

Yes Karl you are right. If the employee is not clearly advised before the end of the probation period that the probation has been extended, then they are right to assume that they have been confirmed in post. So they in fact pass by default.

James Fairchild
Member - 210 posts

You mention wrongful dismissal in passing - this should not be underestimated.

Am I correct that to make a claim for wrongful dismissal (for example lack of notice of termination, or lack of satisfactory/detailed written reasons of dismissal) that service for one month is required.

A related question - if an employee is on a training contract (for example CIPFA, ACCA, etc, etc) and they fail an exam, can this on its own be a valid reason for termination (irrespective of length or service, which could be two months or two years).

I understand from someone who was employed as a trainee accountant within one of the "big four" accounts firms that this very thing has happened to a colleague of hers.

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

The statutory minimum in relation to notice periods is no notice during the first month of employment and one week after that - so you are correct that the employee would need to work a month.

In answer to your other question.

Terminating an employee's contract on the grounds that they have failed an exam would only be justifiable if it was a term of their contract with the employer. In other words the employee would need to have been aware (and have it in writing) that the employer was paying for their training on the understanding that the criteria for continued employment during and after that training was that they successfully passed the necessary exams. It is usual that employees are allowed to retake the exams and are not just dismissed after the first attempt.

Anonymous

We verbally told a new office employee that this position is a 3 month probation and in writing this position will receive benefits thereafter. However, I read e-mails this new person sent during working hours under the company's e-mail address sexually explicit conversations with a person from the previous workplace. My question is to you, without writing a contract of internet /e-mail abuse. Could this constitute immediate termination? I was unable to find under the Maryland Employment Law Book.
Thank you

Anonymous

Has the company 'Acceptable Email and Internet Use Policy' been explained to this employee?

Juliet Williams
Member - 1 post

When were probationary/trial periods first enforced i the UK?

I am doing an assignment on HR procedures in an educational setting and am looking into this area specifically. I have searched the net aimlessly, and cannot find the act or bill of when these first came into being..and how it came to be.

Hope you can help

Kind regards

Juliet

Gillian Nightingale
Member - 175 posts

There is no legislation that requires/enforces and employer to offer a probationary period, although there are many 'good practise' reasons for doing so.

Laura ms
Member - 1 post

If an employee has been employed beyond the probation period, say over 2 years, and has not been performing up to standards. (Problem being too many personal phone calls, personal e-mails, to long a lunch period, not at her desk when should be, in short does not have good working personal ethics). The company does not have an "ethics" policy. So the employee is put on a PIP Person Improvement Plan. If the manager is recording all the so called wrongful activity for this employee does he all so have to record it and monitor it for his other employees? I thought there was a law specific to this type of incident.

Wren Sharma
Member - 1 post

Good evening,

I wanted some advice regarding extending probation periods. I know that a company can no longer terminate a persons probation period without following the 3 stage dismissal process. My concern is about an employee who has been hired on a 3 month probation period and has not met targets. We are looking to extend his probation period. Are there any legal implications that we should be aware of? What would be the correct procedure to follow?

Wren

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

Good afternoon Wren

The criteria which entitles an employee to lodge a claim for unfair dismissal remains at 1 years service. This means that you can still dismiss employees for failing to meet the requirements of the probation period provided you do this within the first 12 months of employment. However as you need to avoid any risk of a discrimination claim it is better to follow a procedure.

You can extend the employee's 3 month probation if you feel that he is likely to be able to meet your standards if given some more time. He should be made aware of your concerns and given help to improve. You should make the extension clear in writing and state the possible outcomes open to you at the next review. You should schedule the review with him.

You should avoid extending the probation longer than another 3 months as this will keep you clearly within the 12 month period.

Hope this helps

Victoria Edwards
Member - 1 post

It is not just discrimination claims that do not require 12 months continuous employment to bring a claim in the employment tribunal. Asserting a statutory right and whistleblowing claims are just two examples

Nicola Buckley
Member - 1 post

'I would like some clarification regarding probationary periods. To terminate an employees contact whilst within their probationary period you still need to have gone through the 3 stage dismissal process. If you have employees working within your company and you want to terminate their contact there still has to be a valid reason and proof to do this? e.g. You cannot terminate a contract (whilst on probation) if things just are not working out? If however, they are not performing then this is reasonable.

So, if an employees probationary period was extended due to performance, which improved, but other issues were to arise as a result, can you still terminate their contract? Does anyone know where I can find out more information on termination of probationary periods?'

melody wick
Member - 4 posts

would i be right in saying that if i dont review and interview my staff while on probation they can pass it by default?

melody wick
Member - 4 posts

what is the legal requirement to giving staff induction? do i have a time limit?

Lucy Dean
Member - 2 posts

I would like further clarification on the extension of probationary periods.

Our current probation period is 6 months for all new staff, and within our contract is the option to extend this by 12 weeks should this be necessary. My question here is that if the probation period ends (by a couple of days) are we still able to extend the period?

I understand that the 3 step DDP procedure has to be followed; how is this affected should the employee refuse to accept the extension of probation?

We would also like to undertake a 360 degree appraisal from an employees peers as we feel this is a fair way to demonstrate the areas needed for improvement; to ensure that the individual does not feel it is a personal attack from a particular member of management. Can this be used legally in extending the probationary period?

Thanks in advance.

Lucy

Darren Sherborne - BPE Solicitors
Online advisor - 16 posts

Jayn's original comments cover this, but the principle is getting lost in the debate.
If an employee has less than one years service, "generally" the employee has no right to claim unfair dismissal. In 14 years I have never seen the qualification period (which has been both 2 years and 6 months in the past) waived by a tribunal where no element of discrimination/whistle blowing was present.
Therefore, if you haved an employee who passes their 6 month probation period, but some event makes you question this, then whether you express the situation as being a "renewal of probation" or "performance management" will not matter a great deal as long as the employee has less than 12 months service at the point of dismissal.
What is more important is that you have a paper trail showing the real reason for the treatment. This way, should you face a claim which uses allegations of discrimination for example to avoid the 1 year qualifying period, you can show that the real reason was not discrimination, but performance.
I hope this helps.

Adrienne Miles
Member - 4 posts

After 5 months of a six month probation period a person is accused of having alcohol on their breath and then becomes the subject of a misconduct enquiry, do they have any employment rights if they can medically prove they have not taken alcohol at all? If a range of staff members have been questioned regarding the allegation and this then makes returning to work difficult (the subject is a senior manager), can they then claim constructive dismissal, or pursue another course of action outside employment tribunals?

Cecile Cathala
Member - 2 posts

I understand employees have no right to claim unfair dismissal if they have been working in the company for less than 1 year. However, has employee got any protection?
1. What about an employee dismissed after 11 months of service, has worked hard, attended all HR/manager meetings, managed to check all the "point to improve" boxes from his manager to see an additional new page of "point to improve" presented to him, and feels he has been totally exploted? Has this employee any protection?
2. What about his protection if this employee initially never had a job description presented to him at his initial recrutment or within his work contract?
Your advice is welcome as this employee is totally distraught and depressed, and has lost all confidence in himself or employers to look for a new job.

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

As Darren and I have both advised previously, employees only have recourse to an Employment Tribunal if they have more than 1 years service. The only other protection is if there has been some form of discrimination.

Andrew Whyte
Member - 1 post

An employee voluntarily left the company.

After 2 - 3 weeks, they found the grass wasnt greener elsewhere and asked to return.

We took them back without continuation of service and subject to a probationery period.

Their performance has dropped significantly and I am considering terminating their employment.

Based on your comment above "The probation period only applies if the employee is totally new to the company" would this be legal or open to challenge?

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

2- 3 weeks would be seen as a break in service provided that the previous contract clearly finished and the new one has a clear start date. It helps if this was made very clear to the new employee when you took them back on the payroll i.e.they are starting afresh.

If challenged you would need to produce paperwork confirming the resignation etc and a copy of the new contract with the new start date.

If this is all in place you would have no problem treating them as a new employee and so once again they would be in their first year of employment.

Kirsti Wright
Member - 6 posts

Jayn

I noticed that you said that probationary periods can only apply to employees who are completely new to the Company.

I am looking into probationary periods for employees changing jobs or being promoted within the company. The idea being that if they don't reach the required standard they would revert to their previous role or a suitable alernative. Would this be acceptable?

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

Kirsti

In order not to have any confusion on this issue, I always find it easier to only use the term 'probation period' when someone is in their first year of employment.

After that, for instance in the examples you give, it is easier to use the term 'trial period'.

If you intend to revert them to their previous role in the event of them failing your trial, then a) you must make this clear when offering the post AND put it in writing and b) you must keep their previous job open until they have passed their trial period.

If a) AND b) are not in place, then you would have to treat them like any other under performing employee and take them through a performance procedure.

Hope that helps

P Andrews
Member - 6 posts

Hi Jayn

If I extend an employee's probationary period from 6 months to 9 months due to business needs must I inform them of the reason for the extension? The extension is not to do with their performance but a downturn in business.

P Andrews
Member - 6 posts

Hi Jayn

If I extend an employee's probationary period from 6 months to 9 months due to business needs must I inform them of the reason for the extension? The extension is not to do with their performance but a downturn in business.

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

Hi
Sorry for the delay in responding. I think you shoudl not confuse a probation period which is about the person's suitability for the role, and the business need for an employee. You should only extend the probation if you have genuine concerns about the person's performance. If you extend it because you might not have the work, that is unfair in the sense that you are giving the person the wrong message and that might adversely affect them in all different ways.
If you confirm them and then find that at 9 months you no longer have the need for the job, then you need to terminate the contract accordingly. As long as the reason is genuine, you give/pay notice and there is no dscriminatory element to the action then the employee cannot lodge a claim against you.
Hope that helps

Linda Tweedie
Member - 13 posts

This debate was sparked by my cry for help more than a year ago. Where the job description/title did not match the role at all. I arrived thinking I was signed up as Secretary to the MD but when I arrived the title, job description etc had changed. Typical of me, I saw it as a marvellous opportunity - a challenge. In a mid-sized organisation, I found I was not only "Management Assistant to MD" but also had the functions of HR Manager (with no CIPD training)/Office Facilities Manager - the spec was HUGE. They never did say I had "under-performed". There was never any discussion or guidance as to which area they were unhappy with, on the contrary - I had no idea the MD was unhappy! One minute I was there and the next - not. I was utterly devastated and my confidence destroyed. I beat my breast for months analysing everything I said, did, the emphasis I placed on priorities etc. It sounds like I might have been able to claw back something from the experience if I'd consulted a lawyer BUT and here's the reality... In any industry, word gets around. You sue, you're screwed so the " probationary period" only works for employers and a 6 months one's too long for some job specs- and it was particularly cheeky as the person I replaced was away having a baby. They saved themselves a fortune over the 9 months I worked there. So more fool me then. Since then, I have been very very successful in my new organisation (also as PA)- and my confidence is back.

Nigel Seaward
Member - 112 posts

Congratulations to Linda Tweedie; she has been well and truly "dumped on" but after a few months of being totally disheartened she has risen above it and is now doing extremely well (by the sound of it)in her new post. Good for her.

I trust, without making a big deal of it, that she has let all her friends, acquaintances, family, and even complete strangers know the name of her former employers so that they can stay well clear of this truly appalling outfit.

It is too late now but she really should have consulted a lawyer despite the possible consequences of word getting around about her being a "troublemaker" or similar. Still, if the previous employer is as bad as it seems it won't be long before they end up being told the facts of life by a tribunal, with it costing them a considerable sum for the privilege.

Linda Tweedie
Member - 13 posts

Thanks to John Shaw for the kind words. There were a couple of employment litigations on-going while I was there although I wasn't privy to the details. I heard, actually only a few months ago, that two HR Managers had resigned one after the other because they couldn't work with the MD. He's due to retire and so arrogant and egotistical, he thinks the rest of the world has it wrong and he's the only one who's sane - ah well then..... ha ha.

P Andrews
Member - 6 posts

Hi Jayn

If I extend an employee's probationary period from 6 months to 9 months due to business needs must I inform them of the reason for the extension? The extension is not to do with their performance but a downturn in business.

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

Hi P Andrews - please see the answer that I posted previously to your question. Answer posted on 16 July.
Thanks

Kirsti Wright
Member - 6 posts

Hi Jayn

Would it be considered good practice to tell new employees that they cannot take paid holiday during their probationary period?

My query is that we could have an employee leave who is not in their probationary period who could owe us money for outstanding holiday so can we really apply this rule to new starters?

Regards

Kirsti

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

Hi Kirsti

This seems to be 2 questions in one.

Employees do accrue annual leave so you can restrict the amount of annual leave taken by a new employee. In other words you can say that a new employee cannot book 2 weeks annual leave during their probation period as they have not at that point accrued 2 weeks entitlement. Once employees are confirmed it is less risky to relax this point.

You should have a clause in your employment contracts that says if someone has taken in excess of their leave entitlement when they leave your employment, then you reserve the right to deduct this amount from their final salary. If you do not have this clause then you cannot deduct it without being guilty of an unlawful deduction of wages.

I hope that this answers both points.

Tracie Rael
Member - 3 posts

A quick question on this subject - we employed a person on a 3 month probabtion period, but have had to inform them that they have not met our requirements. We have given them one weeks notice of the termination of employment and will pay upto that date. He is arguing he should be paid until the end of his trial period....! Does he have a case?

Mark Bennett
Member - 2 posts

i Jayn,

We have an employee who was new the organisation who we elected to promote to a new role after 4 months.
Are we legally able to re-start her probationary period and in doing so negate any time period accrued associated with sick-pay entitlement. The effective wording in her new employment contract states that we are negating any previous length of service with regard to probabionary rights.

Can we do this?
Mark.
(new HR employee in strange company).

Linda Tweedie
Member - 13 posts

As a lay-person and employee, I feel that the probationary period is useful to ensure from both the employee and employer's side that although the person matches the profile on paper, that their personality fits with the organisation's dynamic. Not only has this person met this criteria but you're so impressed you've promoted them very quickly. If I were this employee and the organisation tried to impose a second probationary period, I'd leave.

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

Hi Mark
You cannot restart a probationary period - you can only extend.

However if the company promoted the employee after 4 months then in effect you are confirming her probation - or you would not have promoted her.

She has continuous service from her original start date so unless she left the company in between, you cannot take her service rights away (even if you put it in the contract). So she will accrue sick pay and annual leave entitlement from Day 1.

You could place her on a trial period in her new role.The legal position remains the same that you can still dismiss in her first 12 months (from the original contract) and she cannot lodge an unfair dismissal claim.

She could however lodge a discrimination claim of course if she felt she had grounds.

Dawn Goddard
Member - 2 posts

Hi
A employee was given a 6 months probation period. A review took place at 3 months and the 6 month review didn't take place until 9 months due to their line manager being off sick. It has now been decided to extend the probationary period as she had 2 days off sick during her 8 month of working. Is this all legal?
Thanks Dawn

Ee BNAN
Member - 2 posts

Hi,

I have been given my staff a 6 months probation. On this first 6 months however he has been performing duties that not related to his job description and level. He has been more then once asked to perform my manager's duty because of his previous experience. Nearly at the end of his probation, although I was happy with him my manager decided to extend his probation (without even consulting me) for another 3 months with the justification that as he has been involved in many other duties he has not been able to focus on his role.

Now one day before the end of this extra 3 months probation he has been called in for a meeting with a manager from head office who asked him to justify what he did in the past nine months ? bypassing completely my appraisal?s comments (which was positive) and my request to confirm his contract.
7 days after his probation had ended he receives a letter (dated 2 days after his last probation date) that states that the company does not wish to confirm his contract anymore as he has underperformed (although all his accounts showed a growth of 120% average), and they are only going to give him one week notice.

My questions are:
Taking in consideration that they have completely bypassed my opinion and recommendation as line manager, and failed to advise him at the end of his probation date that he was not successful, can he argue that he has been confirmed in post and that he passed by default the probation date and therefore claim payment of 3 months notice (as per his contract)?

He feels we have just used me when they needed him (and unfortunately I share his sane view), considering he has never been given targets or a guideline on what the company expected by him and asked constantly to perform various duties. Can he file grievance against us?

Thank you!

Anonymous

Hi,

Why have a probationary period in the first place, if within the first 12 months an employee can in effect be summarily dismissed anyway? It seems the default position is that the employee is on 'probation' for the first 12 months anyway. What am i missing here?

John

Tabitha S
Member - 1 post

I have recently finished an employee who had been on a total of 4 months probation period. During this time she was asked to carry out treatments on clients as per her nvq 3 training. Numerous times during her probation she has performed sub standard treatments which we have had to 'make good' at considerable expense. She has been given support and training at great expense to me, however at the end of the 4 months I felt that she was bringing the salon name into disrepute due to her poor treatment standards, cleanliness, and poor record keeping. I finished her with immediate effect as having her continue treatments during a weeks notice would have potentially lost me more customers. she is now wishing to seek legal advice, whats the worst I can expect?

Claire Fuller - Workplace Law Network
Online advisor - 32 posts

As part of the new Workplace Law Network, we have published a white paper on probationary periods. Premium members can download it from here:

https://www.workplacelaw.net/news/display/id/10016

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

Probation periods are a good way of focusing on the employee's first few months for the company and the employee. Not strictly necessary it is true. Tabitha - You needed to pay your employee a weeks notice even if you did not wish her to work it. So you may owe her notice pay other than that her legal advice will be around any discrimination issues.

Ben Jones
Member - 1 post

Here's a curved ball! A friend of mine recently had his probation period extended because they were on unpaid holiday for two weeks in the middle. He was told this was standard procedure and nothing was mentioned about his performance. That extension ended today. He has just been told the team he is leading is disbanding and therefore he can either join another team, but not as a leader and where he will have to completed another 3 month probation, or walk away. My question is two fold. Firstly, he has not received any notificaiton of an extension for his current role, therefore, should he not presume that he has passed his probation for that role and is now a permanent member of staff? Secondly, can a company demote him for something that is not his fault. Should he not be allowed to keep his title and pay grade - if he takes the lesser role, it will look bad on his CV.

Lisa Dormon
Member - 15 posts

I always remind my managers when their staff are due to complete their 3 month probationary period, and we even have a standard letter for the purpose.

But managers often ignore my reminders and I am now wondering what the position is for employees if they go past their 3 months with out any comment. Does this mean they have passed by default?

Lisa

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

Ben/Lisa, the concept of a probation period is entirely contractual. It's not a creature of statute. So if, for example, an employee has a 3 month probationary period, nothing is said about performance in the first 3 months and then after say 4 months the employee's performance is raised and perhaps even the employee is dismissed, the fact that this is after the probationary period is irrelevant since, unless there are special cirucmstances , the employee can't claim unfair dismissal.
You may ask what then is the point of a probation period. It seems to me to have two uses. First to simply remind the employer to review the employee's progress and second in many cases to give the employee who has 'passed' the probation some extra contractual rights such as a longer notice period.
So 'passing' the probation is wholly about your relationship with your employees not about compliance with any externally imposed legal requirement.

Linda Tweedie
Member - 13 posts

I'd like to see a change in Employment Law - in consultation with financial institutions. I'm back here because technically, according to my loan provider, I was permanently employed. see my earlier posts for the debacle. I argued that the appointment was never confirmed - they want that in writing from my unscrupulous employer before they'll do something about the loan insurance which wouldn't have paid out in the last two years because I temp for a while before I could get my confidence back. It is extremely unlikely that the organisation would put anything in writing to help me so I've paid thousands into a policy that wouldn't have paid out and the bank are damned if they're going to refund me the money.
It seems to me increasingly that employers and financial institutions have all the power and even the most conscientious and capable employee is left swinging in the wind. I contend that employment contracts should be re-worded at the outset that the position is temporary for three months (or 6 if that's the probationary period) and only becomes permanent on receipt of written confirmation it is precisely that - permanent. Hand in hand with that, any financial commitment of any consequence should only be agreed on confirmation of someone's employment status. No-one's going to lose out here. Don't take someone on if they don't have a CV and references that prove they can do the job!

Lisa Dormon
Member - 15 posts

Thanks Martin

That helps a lot.

Lisa

James Fairchild
Member - 210 posts

Linda T, for employee advice can I suggest you refer to http://www.consumeractiongroup.co.uk/forum where I am sure you will find advice on dealing with both a financial institution and an unscrupulous employer.

Regardless of the wording, an employee's service is only 'protected' if they have been employed for a year or more.

Linda Tweedie
Member - 13 posts

Thank you for this. I'll find out what they say but I suspect I'm between a rock and a hard place.

Regards

L

Teresa Steele
Member - 1 post

What an interesting topic. I was dismissed from my job yesterday ( 2 days after my 3 month probationary period ended) and I have 2 questions to ask

1. As mentioned above since I was not advised until 2 days after my probation ended could assume I had passed by default?

2. The reason I was given for my dismissal was that I had not met targets and that my employer did not think that I would be able to cope with the pressure of trying to meet those targets if my probation was extended. I was given no warning that this was the case and was not offered any support, training or encouragement while I was employed there.

PS I live in Scotland, does the same law apply here?

Many thanks,

Teresa

Linda Tweedie
Member - 13 posts

I'm not qualified to advise you Teresa but my feeling is that support and encouragement at least are needed in any new job and if they felt you were underperforming, it would have been better to talk to you about it before pulling the rug out from under you - giving you an opportunity to address their issues. Giving them the opportunity of offering training to iron out the kinks. I think employers have a responsibility after deciding that you qualify for the job and have a cv that matches the role AND having chosen you above all other applicants. I'm in Scotland too. When we receive a letter offering us a permanent position, most of us are confident that we're not drongos so when it says "permanent" on the tin...... Better to write on the employment letter that the position is being offered on a "temp with a view to permanent" to be reviewed following a 3 months probationary period.

Craig Stuart
Member - 59 posts

Trade Unions have campained for employment rights on unfair dismissal (from day one of employment) for years. Unfortunately it seems that the likes of the CBI, IOD et al, have the ear of the government on this one. There are so many cases of employers using the current situation as a means to dismiss. I find astonishing but not surprising, some of the cases highlighted in this discussion. We see many of these and would clearly like to see better employment rights for individuals. Indeed, if employers are generally 'fair', they have nothing to fear?!

Linda Tweedie
Member - 13 posts

Most employers are no doubt fair and conscientious but we're not protected from unscrupulous ones. I blame Thatcher. Things swung far too far. Employers might have had problems with new staff and the same is true for Landlords and tenants - we need a happy medium.

I can't see Trade Unions succeeding any time soon because they have little power these days too. As much as we are having our eyes opened about what the financial institutions have been up to all these years - perhaps its time we got it into the public domain (louder!) that permanent contracts of employment might have little security for most people. I was once offered a job with 6 months probationary period - I refused the offer (politely). I have a really good cv/track record and if they can't trust their own HR/interviewing process .....well then.... :o)

Colin England
Member - 55 posts

HR People should not worry unduly about what the law says. Employees are rarely well informed about their rights and even if they do go to an employment tribunal they are not likely to win because the ETs and the EAT are biassed against employees and in favour of the employer.

J Bray
Member - 11 posts

Teresa/Sara, It all depends on what the contract and handbook say. There's often a clause that says that the standard disciplinary procedures don't apply to employees on their probationary period/short term service (which could mean under a year) and that these workers may not be warned before dismissal. If it says this then they can do it.


Yeah right Colin. Don't know where you live but that's not the way it works in most of the country. ETs are known for being employee biased where I live.

Try being an employer taken to ET by an ex-employee, with a very good lawyer who had also been responsible for claiming from his previous companies, who made up loads of lies just to make some money. Then see how it feels.

People are all too aware of their rights and try to claim all sorts during the course of work under the term 'discrimination' just because they don't agree with company procedures. An example of this is 'work life' balance that everyone mentions if they're not allowed to take unpaid time off for reasons such as going shopping or looking after their dog etc. They fail to realise that work life balance works both ways and that if the work isn't done when customers expect it the company is unlikely to stay afloat (unless you work for the public sector in which case you can take whatever time off you like, with pay, and get away with it because it's funded by tax payers money).

Kevin Brown
Member - 73 posts

Thanks Jenny, until your post I hadn't realised that as a public sector employee I can take whatever time off I like and get away with it .........

Perhaps I should mention that to my manager who is reluctant to give anybody time off because the swingeing job cuts have left us virtually unable to cover each other over legitimate absences.

Must dash, its time for the half-hourly tea break so I'm going to take off my shoes and relax .... perhaps you'd like to walk a mile or two in them?

Colin England
Member - 55 posts

Hi Jenny

Have a lookat the statistics which show very clearly that most employees lose their case - especially when they are not represented. And that goes for the whole of the UK.

I agree that it is hard luck on an employer who loses and pays out a lot of money but that is usually due to the employer making a serious mistake in their HR proceedures or in the ET proceedures or the way they argue their case. In my humble opinion.

Regards
Colin

J Bray
Member - 11 posts

Hi Colin,

I'd be interested in seeing the stats as the last ones I saw showed that more employees than employers were winning around my area (although I admit I haven't looked at any for a couple of years!)

Those without a real case to support are often the ones that involve lawyers to fight their corner as they know they are more likely to receive some form of payout with a lawyer on side. Unfortunately, as lawyers are all too aware when targetting a smaller company, it is cheaper for the company to pay out before the tribunal rather than go through a costly process that involves taking several employees off their job for a few days so they can provide evidence.

Public sector remark was designed to induce comment as much as your previous comment about HR not worrying about law was :)

Jenny

Linda Tweedie
Member - 13 posts

I would say absolutely the opposite would be true. Unless you're minted, you can't get a lawyer - unless you have an airtight case, are absolutely sure to win. That is, an employer HAS acted illegally and you can prove it. Then the lawyers stand to make easy money. Also I don't think anyone really wants the world to know this kind of thing. I mean, no-one goes to court for the hell of it. Not only is it cheaper for a company to settle out of court, it's also a way to keep their misdeeds out of the public domain. Smaller companies might not have robust enough HR practices in place to ensure employee rights are attended to - enough to avoid payouts. As a PA I once held a position where the HR role was tagged onto my job description, despite not having CIPD quals. Cheapskates. I heard later that they once had HR Managers - two actually - both left because the MD never listened to their advice - why because he was rude, a bully and liked to sack people simply because he got out of bed on the wrong side. And since then, I have been approached for other PA to MD-type positions which have the "personnel management" function tagged on. Jenny - it looks to me like you've had a bad experience - Im not saying that all employers are bad and all employees good. Having that robust HR mechanism in place - and strictly adhered to, should protect both sides. What we're saying here is that some unscrupulous employers are using the 3 or 6 months probationary period in an unfair way - to get away with bully-boy tactics while an employee has no/reduced legal redress.

Jessica Green
Member - 1 post

It's looking like I'm going to be left jobless this week following my employer's argument of me not being a 'good match'. I believe the real reason is because they will employ someone much cheaper than me, as my job level is going to be staffed by business school students from abroad! I realise I have no rights as I've been there for four months and they will just argue a performance issue which is so subjective. Does anyone know if I'd be better to resign first?

Lisa Dormon
Member - 15 posts

I knew probationary periods would come around to bite me again.

Under our employment contract we say everyone is on a probationary period for 3 months. The wording of the contract says
Less than 1 month’s service – nil
1 month’s service to the satisfactory completion of your probationary period – 1 week
From the satisfactory completion of your probationary period – 3 months

This is on both sides.

I now have someone who has completed 15 weeks with the company, but was not written to, to confirm their completed probation period, that has now resigned. I am somewhat concerned as to which notice period is actually applicable? 3 months or 1 week?

Any advice?

Darren Windsor
Member - 6 posts

Hi All,

I have a rather unique query. An employee has had their probation extended but the terminology used was ""We confirm that your probationary period has been extended until such time as your grievance appeal is heard and a review of your probationary period is concluded. We will endeavour to arrange a review of your probationary period before the 28/02/08." On one reading, the probation period is open ended - on another, the probation ends on the 28th of Feb? Which would be correct? Can a manager create an "open ended probation period?

Darren Windsor
Member - 6 posts

Hi Lisa,

If the employee has not been told that their probation period was either unsuccessful or has been extended, then they have pass their probation by default (15 weeks being more than 3 months).

Unless they have done something to warrant an immediate dismissal, they are entitled to 3 months notice. Similarly, they have to givre you three months notice as well. If either party does not give appropriate notice, the only recourse is to sue them for breach of contract: which may not be worthwhile.

I hope this helps

Darren

Colin England
Member - 55 posts

The Courts might well decide that a three month notice period for an emploee is too long and is an unfair restraint on his earning capacity. There have been cases about this before.

Colin

Anthony Stevens
Member - 4 posts

Hi

Can an employer fire someone within their proabtion period and not follow any usuaul dismissal procedures. There had been no warnings or discussions about poor performance, the person was 4 months into a 6 month probation period at a senior level.

The person was called to into the office with no notice whilst off sick for chicken pox also

Any help will be gratefully received

Linda Tweedie
Member - 13 posts

This happened to me - I was on a 6 month probationary period in a junior management position. They never did confirm my appointment then I found myself in the car park with a box with my possessions. Absolutely soul-destroying. I felt like the past 30 years with an excellent record and working with companies of 3, 6 and 12 years stood for nothing. I felt like I must have done something dreadfully wrong - I had NO clue what I could have done differently - they didn't tell me. A reputable employer would have addressed issues the minute they appeared or at least given me some sort of feedback. I did get an email from the company's HR Consultant who wasn't very complimentary about the company or the people in it - which went some way toward making me feel a little better. I think the answer to your question is probably yes - if it's within the probationary period then a company can do anything it darned well likes.

Colin England
Member - 55 posts

The standard proceedure for disciplinary matters as set out in law must be followed even for a dismissal withint he probationary period. See a lawyer asap.

Gavin Inches
Member - 11 posts

Sorry if this point has already been made - in general terms employees do not have the right to bring claims for unfair dismissal in the first year of their employment - exceptions being breaches of discrimination laws etc. This being the case there is no requirement on employers to use the statutory disciplinary procedures for employees who have worked for less than a year. Many contracts, including ours, make clear that the company reserves the right to dismiss an employee during their first year without using the disciplinary procerdure but I don't believe the contract has to say this in order for the dismiissal to take place.

Darren Windsor
Member - 6 posts

Hi Gavin,

The laws governing "disputes at work" does not have a minimum period. The right to the three step dismissal process (or two step for gross misconduct) is statutory and is therefore implied in every employment contact and can not be altered by contractual terms.

What Gavin means, I think, is that a law is only as good as your ability to enforce it. Without 1 year's employment, enforceability is difficult. Therefore an employer can dismiss you without following the proper procedure - not because they are right to do so - but because they know there is little you can do about it.

One thing you can do about it is report any HR professional (i.e. member of the CIPD) who advocates such a thing to their professional body as it is contrary to their "codes of conduct".

Linda Tweedie
Member - 13 posts

Aha! Interesting - that's why the organisation I worked for sacked TWO HR managers before me! AND why they refused CIPD training for me. Not stupid were they.

M Bullard
Member - 1 post

Whilst it is beyond dispute is that employees with less than a year's employment cannot claim unfair dismissal and basically has very few rights, What happens in a case where an employee who, initially, was employed with a probationary period of 6 months and is now being bullied and harrassed by his employer? The employee has been with the employer for 5 months and arrived at work this morning to find an e-mail from his employer, suggesting his probationary period be extended by a further 3 months. There is nothing wrong with the employee's performance. To give an example, this morning, he approached his line manager requesting that a long-outstanding matter be discussed (which he had repeatedly brought to her attention). She came into the meeting, with another employee and proceeded to lambast the employee for buying her the "wrong" colour printer. She didn't want one with individual ink cartridges, but rather one that has all the colours together (!). The subject matter of the original meeting was never raised. This is just one example of irrational behaviour on the part of his manager. Furthermore, there is some very dodgy stuff going on (this is a local council) which he is aware of!

Mohamed Deen
Member - 4 posts

Hi, People are given probationary periods because, neither interviews or references tend to give the actual capabilities of candidates for employment. Where in one situation a candidate has done extremely well he or she might not be competant under a different working atmosphere. While there is no legal requirement for enforcing a probationary period there is nothing in the law preventing employers from engaging staff on probation.
In this context the case of J Hamblin v London Borough of Ealing [1975] IRLR 354 might shed some light. Here the majority of the Tribunal held that "In the circumstances, the applicant's dismissal was not unreasonable. The matter had to be viewed within the context that her's was a probationary appointment. Whilst probationary periods are not removed from the ambit of the unfair dismissal provisions of the Trade Union and Labour Relations Act, the test of reasonableness in the case of probationary appointments is not quite the same as in the case of an employee in another category. A probationary employee knows that he is on trial and that he must establish his suitability for the post. The employer on his side must give the employee a proper opportunity to prove himself but he reserves the right to determine the employment with appropriate notice provided he has reason for so doing".
I hope that this will enlighten all Workplace Law Members on this issue.

Dr. Haris Z Deen

James Fairchild
Member - 210 posts

Just a suggestion, but perhaps people could put seperate questions into a new thread? Seems rather confusing... (anyone agree?). Anyone who has arrived here via doing a google search, please note that this site is not for employee advice (try www.armchairadvice.co.uk/forum) it is for managers and HR advisors to discuss issues.

One question from the above I would like to draw out - Colin England and Darren Windsor state that an employee (with less than a years' service) is entitled to the dispute/dismissal procedures being followed - Gavin Inches (and I think myself) disagree: whilst section 98A of the Employment Rights Act 1996 (as amended) doesn't explicitly reference a minimum service period, section 108 of the same does. If anyone can explain why my thoughts are wrong, I would be very interested.

Re Lisa Dorman's query (one week or three months notice) - from the way she has typed up the contract extract, then unless the employee has been specifically told the probation period has ended, then I believe it is just one week. However, does your contract state a length of this probabionary period? If it is stated as "six weeks" you may have a problem (length of time implies that it is deemed completed successfully?) but if "three months" then that is about fourteen weeks. Are you trying to hold this person to three months notice, or do you want them to leave (or be paid) for only one week?

Darren Windsor's question about the open ended clause - as the concept of a probationary period is not something legally defined, then it is up to the company (obviously if this gets strung out to 51 weeks from start of employment, normal rights take over). If they want to extend it to some future unspecified date that is expected to be around 28th Feb 08 then that is their perogative, but they would still be seen as reasonable if their investigation goes on a week or two after that (in my opinion). Anyone else agree/differ?

Darren Windsor
Member - 6 posts

James,

Your question about dismissal procedures is a good one. The apropriate statute is the "The Employment Act 2002 (Dispute Resolution) Regulations 2004 ". This aleterd the Employment Rights Act (ERA). Clause 4 (Dismissals to which the dismissal and disciplinary procedures do not apply) does not mention any time restriction. Section 94 of the ERA and the 12 month minimum refers to "unfair dismissal" and not the dimissal procedure.

I hope this helps

claire jackson
Member - 1 post

If you have someone on probation period (3months) and you have written down discussions on always late/poor performance etc and extended their probation for another 3 months, 1 month into extension and still no improvement, However she then tells me she's pregnant. I had already made plans to dismiss her purely on performace, can she then claim i'm dismissing her because of her pregnancy? claire

Colin England
Member - 55 posts

I quote Darren Windsor "What Gavin means, I think, is that a law is only as good as your ability to enforce it. Without 1 year's employment, enforceability is difficult. Therefore an employer can dismiss you without following the proper procedure - not because they are right to do so - but because they know there is little you can do about it."

An employee can take an employer to the civil courts at any time and the fact that the rules are Statutory means that the Civil Courts will have regard to them. One of the points made for the abolition of the Statutory Rules is that employees are taking out cases in the Employment Tribunals simply to have a ruling as to if the Rules were followed correctly or not.

What you say to James is quite correct - there are no time limits to the application of the Rules - maybe because in other EU Countries all employment protection rules apply as from the first moment of employment.

In reply to Mohamed Deen may I again point out that the Rules do not require a time in employment before they come into effect. The fact that an employee is on a probationary period is just one thing to be taken into account by the tribunal. IMHO a probationary period must not be too long - it may then be taken as a restriction on a man's employment opportunities - and the employer may be "unreasonable" not to formally end the probation period.

There is also the point that the employee has the employer on probation as well and can leave the employment on a short notice (usually) during the probationary period. This may then mean more problems for the employer in getting the work done.

Gavin Inches
Member - 11 posts

May I clarify what I said and meant:
"By law, there are certain minimum steps that must be included in a disciplinary procedure - these are known as the 'statutory minimum procedures'. If your employer dismisses you without following this process, then if you make an unfair dismissal claim, the dismissal will normally be 'automatically unfair'. You normally need at least a year's service before you can make an unfair dismissal claim. " (From http://www.direct.gov.uk/en/Employment/Employees/ResolvingWorkplaceDisputes/DG_10028111) Thus it follows that, if you are unable to bring an unfair dismissal claim in your first year of service, you have no redress if your employer does not follow the process.

Gavin Inches
Member - 11 posts

Re previouis post - see also advice from Jayn Bond 17 June 2007

Claire Fuller - Workplace Law Network
Online advisor - 32 posts

Premium members of Workplace Law Network can download a white paper called 'Disciplinary and Dismissal Procedures: grappling with them in the workplace'.

Go to http://www.workplacelaw.net/news/display/id/13718 for more information.

James Fairchild
Member - 210 posts

As Colin reminds us, this will become academic if the resolution procedures get repealed. Then (presumably) we will have Polkey rules again.

Colin England
Member - 55 posts

To quote gavin "Thus it follows that, if you are unable to bring an unfair dismissal claim in your first year of service, you have no redress if your employer does not follow the process." You may still have rights enforceable in the civil courts - and they may (should) take account of the "Rules"
Colin

Colin England
Member - 55 posts

In discussion in the office here it has been pointed out to me that the "Rules" are made part of the contract of employment. So all courts must enforce them. This does seem to be the case on readingt he Regulations. Any comment anyone?

Darren Windsor
Member - 6 posts

Colin, you are right. The terms of your employment is usally the combination of your offer letter and the terms and conditions that exist at the time you are hired: with the offer letter taking precedence. For example, the general terms and conditions may state that you are entitled to 1 weeks notice during your probation but if your offer letter states 4 weeks - then four weeks it is. The courts will enforce them as they will enforce any contract but all you may be entitled to is the notice period. You can not claim for aggravated damages for Breach of Contract.

Depending on the actual facts of the case (e.g. If you are being bullied or harassed) then you might be able to sue under different statute or case law. In the example of bullying or harassment, you might be able to sue under the "Protection From Harassment Act 1997". The same might apply for discrimination under the DDA - interesting point here

Dawn Button
Member - 1 post

After checking previous posts I am still unclear whether an employee can claim constructive dismissal in the first three months if this is within their probabtionary period?

James Fairchild
Member - 210 posts

Dawn,

The existance or otherwise of a probationary period is irrelevant. Depending on the circumstances of the alleged constructive dismissal, I believe that if related to a discriminatory factor (age, race, disability, etc) then there is no relevant time period (others can be more definitive).

Anthony Stevens
Member - 4 posts

yes, but what about when you dismiss an employee within their probation period but dont follow any process - does the employee have any re-dress, our CEO did this against my advice.

James Fairchild
Member - 210 posts

Anthony,

Ignore the existance (or otherwise) of a probationary period. Instead, consider what statute provides, i.e.:
essentially nothing if within the first monthof service
entitlement to notice if between 1 and 12 months of service
right not to be unfairly dismissed if more than 12 months service

remembering that any contractual entitlement that is better (i.e. your contract may provide for three months' notice from day one) is the measure that applies.

Further bear in mind that a claim (or potential claim) for a possible disciplinary factor may make it advisable to follow more of a process.

Of course, it is good practice to follow the same process regardless of length of service. If the employee you mentioned (Anthony) did not receive notice or PILON then yes, they would have redress, and they would also have redress if they had a claim (not vexatious) for race/sex/age/etc discrimination.

Meilu Li
Member - 3 posts

Jayd Bond,
In relation the the question and answer below do you have a link or exact law text in realation to this?
Thanks

"qoute" "Anonymous

By civil action do you mean common law? I was hoping you may be able to shed some light on this.. should an employee's probation period end on on specific date and the employer does not inform them of an extension of it BY that date has the employee passed it by default?

Best regards

Karl

23 Feb 2006 4:48PM

Jayn Bond - Workplace Law Network
Online advisor - 67 posts

Yes Karl you are right. If the employee is not clearly advised before the end of the probation period that the probation has been extended, then they are right to assume that they have been confirmed in post. So they in fact pass by default." "end quote"

Linda Tweedie
Member - 13 posts

Regarding Mohamed Deen's post. If this is true, that CVs and references are useless - would you be suggesting the (say) a surgeon of 20 years looking to relocate suddenly would lose all his ability