Under 5 magazine

LAW-CALL

Points of Probation - Part 2

The team at Law-Call, a 24-hour legal helpline available to Alliance members, detail the particulars of probation periods for new employees

Baby and toddler group, parent and toddler group or stay and play – whatever you call your set-up, these sessions provide a valuable opportunity for families to meet new people and enjoy play activities in a safe, informal and friendly atmosphere. Here are some common legal considerations for those leading sessions...

What are your contractual obligations to the employee?

Everything in the employee contract – from enhanced company sick pay to disciplinary procedures – is applicable from day one, unless stated otherwise.

Documentation outlining contractual benefits for new employees should be reviewed and, if necessary, amended to reflect any conditions.

Company-specific policies and procedures that aren’t automatically applicable during the probation period should be explicitly stated in the contract.

Disciplinary procedures and policies

It’s recommended that any procedure or policy for disciplinary action be made either completely non-contractual or non-contractual during the probation period.

Contractual: formal warning stages and/ or meetings related to employee conduct and performance outlined in the employee contract.

Non-contractual: no formal warning stages and/or meetings outlined in the employee contract, allowing for more informal discussions of issues or concerns around suitability – this prevents fault being assigned to an employee who would be better suited elsewhere.

Notice periods – knowing the facts

Even in the probation period, if the decision is made by either party to terminate employment – following the employee’s minimum onemonth service period – notice of termination is still required. This can, however, be determined by each individual setting.

After one month’s service, employees are legally required to give/be given a one-week notice period. Following this, employers can choose their own notice period – though it’s recommended that the notice period during probation be shorter than the notice period afterwards, as this allows for speedier recruitment and reduces any negative impacts from employee turnover.

Hold a review meeting towards the end of the probationary period to discuss the employee’s performance during this time and indicate whether the employee has passed, or if you are looking to terminate or extend (subject to the contractual right to do so, as outlined above).

Regular reviews should take place during the probationary period – with notes/minutes recorded in each session for evidentiary purposes – providing an opportunity for any issues or areas of improvement to be outlined to the employee.

Regardless of how well drafted a contract may be, there may still be occasions where terminating employment risks an automatic unfair dismissal or discrimination claim – for example, sickness absence due a long-term health condition, absence related to emergency childcare, or if the employee has raised an issue and feels they’ve been treated unfavourably as a result of any protected characteristics.

Common issues that occur during the probation period

References

Before starting work, only one of the two reference requests required for the new starter is received, with the second – highlighting some issues with the employee’s conduct – arriving after the start date but still within the probationary period.

It’s recommended that any procedure or policy for disciplinary action be made either completely noncontractual or non-contractual during the probation period.

At this stage, the job offer cannot be withdrawn. However, following receipt of the second reference, you could consider dismissal once you’ve checked the right to end the probation, and followed any procedure stipulated in the contract.

Even if your disciplinary procedure is non-contractual, a formal meeting should ideally be held with notes taken to consider any information the provided by the employee that may outline a good reason for the negative reference. Alternatively, if no good reason is highlighted, having formal notes from the meeting may be useful in identifying behaviour patterns that match the reference.

Absence

How you approach new starter absences in the probationary period should depend a) on the reason for absence, and b) any absence management policy you have in place.

If the absence reasons include various short-term illnesses – cough/cold, headache, stomach bug – without an underlying health condition, you may decide to terminate the probationary period by serving the required notice. Providing the contract allows for this, notice can occur during the probationary period without waiting until the end review.

How you approach new starter absences in the probationary period should depend a) on the reason for absence, and b) any absence management policy you have in place.

Should the absences be linked to an underlying health condition, extra care needs to be taken. If the employee has a medical condition (mental or physical) that has lasted – or is likely to last – for 12 months or more and has a substantial effect on their ability to carry out normal day-to-day activities, this could be considered as a disability under the Equality Act 2010. Dismissal, or any other action due to this disability – which is a protected characteristic – could take a discrimination claim to an Employment Tribunal. This same route can be taken by any employee whose absence is related to pregnancy.

In such scenarios, consider a full review to assess the employee’s capability of performing the role, rather than a probationary-period termination.

Equally, absences related to an unexpected family situation – such as an unwell child or an incident requiring unexpected care for a dependant – also need to be treated carefully. Time off for dependants is a statutory right, and a dismissal related to any absence of this kind could also be automatically unfair (i.e. requires no minimum service requirements).

Conduct

If you have issues with a new starter’s conduct in the probationary period and the disciplinary procedure is non-contractual, it’s advisable to hold a meeting to discuss this further and serve notice to terminate.

Conduct issues can be difficult where there’s a potential act of gross misconduct – such as theft, a safeguarding breach, a health and safety breach, or inappropriate language. Unless any other risks or issues are highlighted, you could decide to look at a termination for a failed probationary period and issue notice. A ‘without notice’ dismissal for gross misconduct – where the employee receives no notice period or pay – can only safely be achieved following a full, formal disciplinary procedure.

Depending on the notice period, this procedure can take as long as the notice itself, with no guarantee that the evidence gathered will support a gross misconduct dismissal. Additionally, if there’s a safeguarding issue or something that would be disclosable for DBS purposes, this would need to be considered and reported correctly.

Whatever the length of the probationary period, it is a good idea to have regular reviews throughout. This can show that you have given every opportunity for the employee to address the things you are not happy with, as well as help identify any additional training needs.

The aim of the probationary period is to support new staff members and integrate them into the team. Although terminating employment during the probation period is an option, it shouldn’t be the first reaction to any issue. Recruitment can be costly and time consuming, and not something to take lightly where you have a new staff member who is genuinely wanting to do well!

Other top tips during the probation period:

Communicate effectively, outlining how they can improve, and then help them achieve this.

Make sure the training provided is tailored to individual needs and roles.

Give them a chance! Even those with an abundance of experience will have to adapt to your organisation’s way of working and potentially need additional time and/or support.

Find out more
All Alliance members can contact the team at Law-Call for legal advice. You can find their contact details in the members’ area of our website at portal.eyalliance.org.uk.