Mar 25
Many managers will know from experience that even if they follow a robust and thorough recruitment process, this does not guarantee that the employee is up to the job.
The effective use of a probationary period is one way to reduce the risks, and this is expected to become increasingly important when the Employment Rights Bill 2024 comes into effect. The proposed changes will allow employees to bring a claim for unfair dismissal from their first day of employment, rather than needing two years’ service. It is expected that employers will still be able to dismiss fairly during a limited initial period (nine months is the Government’s preference), provided they use a ‘light-touch’ process. To avoid unfair dismissal claims or having to go through lengthy capability procedures, it will be crucial to use probationary periods to monitor, assess and respond to the employee’s performance.
How an employee performs in an interview does not always reflect their capabilities, or their performance may deteriorate over time. This means managers need to be confident and ready to manage performance, especially where it is unlikely that support or training will bring the employee up to the required standard.
Harjeet Nangla, a Senior Associate in the employment law team at Raworths LLP discusses this further here.
Although the changes proposed in the Employment Rights Bill are not expected until 2026 at the earliest, now is a good time to embed the effective management of probationary periods so that your business is ready for these significant changes.
Harjeet Nangla highlights the legal risks of dismissing poor performers and the timing of this, explains how to use probationary periods effectively, and identifies what an employment contract should include about a probationary period.
After two years, it may be fair to dismiss a poorly performing employee on the grounds of capability, however a fair process has to be followed and the decision must be reasonable. This process can be particularly challenging for line managers as it is time consuming and involves close monitoring and supervision.
Employers sometimes believe that there are no risks to dismissing a poorly performing employee before they have two years’ service, but this is not the case because:
Inconsistent treatment of staff, not following a basic process, or not explaining the reason for dismissal to the employee, will usually make it more difficult to successfully defend such claims.
Effective use of the probationary period can bring employment to an end at an early stage in the relationship, either during or at the end of the probationary period. This avoids following a lengthy process when the employee is protected from dismissal, currently after two years’ employment. It also avoids dismissing an employee after a year or so when some individuals might query why they have been kept on if their performance was inadequate. This can trigger concerns that the dismissal is actually due to a protected reason, such as if they raised health and safety concerns, which could give rise to a tribunal claim without needing two years’ service.
Best practice includes:
Contracts of employment should include a probationary period and specify how long it will last; typically, for six months. We can suggest additional wording that will give you flexibility to extend the probationary period in certain circumstances.
Contracts should usually specify a shorter notice period entitlement during the probationary period, to allow for a quick departure once either the employee or the employer decides the job or the relationship is not working out.
The specialist employment law team at Raworths can help you implement a suite of measures that will minimise risk to your business in managing performance. This includes drafting effective probationary policies and probationary period clauses in contracts, advice on performance management and negotiating and drafting settlement agreements to secure a quicker and lower-risk exit.
For further information, please contact Harjeet Nangla in the employment team by email at harjeet.nangla@raworths.co.uk.
Raworths LLP is based in Harrogate, North Yorkshire.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
Published on 31 March 2025
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