Slipping up during probation: the employer on trial


Probationary periods at the start of a new job are standard procedure with the majority of businesses, who use this time to assess the performance of the new recruit, from performance, to commitment through to general suitability for the role and organisation.

Many employers consider this period as invaluable, with figures suggesting as many as three-quarters of bosses regret hiring a certain member of staff.

The probationary period usually lasts for three months, but it can go up to six. The length is at the discretion of the employer, although they should not make the length of probation ‘unreasonable’.

It is important that all new recruits are supported during their probation and provided with the necessary resources that will allow them to work to an expected standard. This could include:

  • A clear job description
  • An overview of the business, procedures and departments
  • A training schedule
  • Regular review meetings where opinions on progress are shared

New employers need to be given a fair opportunity to meet expectations and managers should offer solution-based advice rather than criticism. When an employee is failing, an employer should work with the employee to address the problems and devise a plan of activity and learning that will bring them up to speed.

However, if it is clear that, despite an employer’s full support, the new recruit is failing in their role, based on their capability or conduct, it is important an intervention is made. It is not necessary for an employer to wait until the probation period is over before addressing poor performance.

If dismissal is the only option left, employers should ensure that the decision is fair and they act accordingly, such as setting out a clear dismissal procedure and providing clear communication with the new employee on the reasons and schedule of events. It is crucial that this procedure takes place before the probation period expires because an employee can rightfully presume they are confirmed in the role if they are not made aware of concerns before the end of their probation.

Ensuring the dismissal procedure is sound is vital if the employer is to avoid claims of discrimination of unfair dismissal, which the employee can rightfully claim from day one of their employment. The probationary period does not affect an employee’s statutory rights, although certain benefits can be withheld until the probationary period is successfully navigated.