Time’s up – when probation doesn’t work out

It’s just not working out. Unfortunately, not every new hire works out, even if you have been diligent in your recruitment and have robust onboarding.

There could be many reasons why an employee’s probationary period doesn’t work out and your assessment could be driven by factors like poor performance, timekeeping issues, attendance, concerns about your team member fitting with company culture, or even an act of gross misconduct, such as violence, theft, or fraud.

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What is a Probation Period?

A Probation Period enables an employer to assess performance and suitability for the role over a set timeframe. If managed correctly, at the end of the probation period, you will have an employee who is meeting the required standards, and feels supported and welcomed into the organisation. You will have a successful recruit.

If your recent recruit is proving to be the wrong fit for your business, you might be thinking about terminating their employment. Before you do, there are some things to consider. To help you out, we have outlined the steps you need to take if you think your employee is going to fail probation.

Dealing with concerns during the probation period 

There should be regular probation reviews set up during the period. Concerns should be addressed promptly and need to be documented.

The employee may have no idea that you’re unhappy with their progress, so this is a good opportunity for them to highlight any areas they’re struggling with, or any problems they’re facing.

In turn, regular reviews give you a chance to offer additional support or training where necessary. to see if you’re able to overcome these challenges and help your new recruit get back on track.

You’ve gone to the time and expense of recruiting this person, so it is worth seeing if there’s anything you can do, rather than going back to square one. This is especially important because it is so difficult to hire in today’s employment market.

If there are major concerns, and they cannot be managed during the period, it is possible to terminate before the end of the probationary period.

Are things still not working out?

It’s time to call a final meeting to terminate their employment. Check your disciplinary procedure applies to employees on probation and, if it does, follow that procedure.

If your disciplinary procedure does not apply, then invite them to a meeting and let them know they can bring a colleague or representative to the meeting with them if they wish to. It is important that you explain clearly why their employment won’t be going forward.

At this point, you need to make sure you give them a formal letter that outlines their official leaving date and details the final payments they will receive, including any entitlement to accrued holiday. It is key to ensure that all contractual entitlements are fulfilled to prevent a claim for wrongful dismissal and breach of contract.

Communicate clearly and put everything in writing

Throughout the process of managing the probation process for your new hire, it is best to put everything in writing. Make notes of each meeting and record examples that demonstrate the ways they are not meeting the terms of their probation. This will give you something to turn to at a later date, as well as helping you avoid an employment tribunal claim.

What are the risks of terminating employment at the end of a probation period?

An employee needs to have worked for you for two complete years to bring a claim of unfair dismissal. This means that you can, generally, terminate someone’s employment at the end of their probation period without too much concern of possible claims.

However, a word of warning; if the employee feels that they have been discriminated against on the grounds of sex, race, disability, religious belief, age, sexual orientation, pregnancy or maternity, marital status and civil partnership, or gender reassignment (for example they were impeded in doing their job because of a disability, or they feel that their manager made inappropriate comments about their sexual orientation and didn’t give them a fair chance due to bias), then the two-year rule doesn’t apply. There are also some other potential routes to claim.

Mitigating risk is not just about preventing employment tribunals. The way you treat your employee is visible to the rest of your organisation and contributes to the culture of your organisation. Act in line with your values, treat this person with dignity and respect throughout the process and you will mitigate the reputational and commercial risks to your business.

Terminating a team member at the end of a probation period can seem like a minefield, however, once you have the probation period process documented and your managers trained, it can be easily overseen. Documenting discussions, being clear with timescales and expectations and preparation is key.

We can help you write a probationary contract, including setting up templates and a timetable for the review period, and ensuring that the review meetings are managed effectively.

If you would like to know more about how MAD-HR can support you, please do give us a call on 01473 360160.