Probation periods give employees and employers the opportunity to assess whether there is a good fit between the parties.
Much of the time, things go well and probation is passed. There are of course times, however, when things just don’t work out, probation period is failed and employment is terminated.
When the probation period is failed, there is the question as to whether an employee has a right to be accompanied at the meeting in which they are told that they are being dismissed. The purpose of this post is to help employers understand where they stand and whether the right to be accompanied should always be given as an option.
Time to read our post: 5 minutes
The questions answered in this post are:
1. What’s a Probation Period and When Do I Complete Reviews?
A probation period is a period of time, typically 3 to 6 months, that employers use to assess the fit of a new employee. You can also implement this for existing staff who are changing roles within the business.
During a probation period, you should aim to complete monthly reviews with your employee to check their progress. This will allow you to provide feedback and document any issues or concerns you or the employee may have.
We can’t stress enough the importance of providing regular feedback to your employee during their probation period.
By making sure they understand any areas for improvement and have an action plan in place to address these areas, you stand maximum chance of making the employment a success. Failing to provide feedback throughout probation and then announcing that someone has been unsuccessful and is either having their probation extended or their employment terminated, is likely to cause problems.
At the end of the probation period, you should hold a final probation meeting to confirm whether the employee has passed or failed probation or whether there is a need to extend the probation period. You confirm the outcome of the meeting in writing.
2. What are the Options for Being Accompanied at a Probation Review?
Under UK employment legislation, employees have the right to be accompanied to grievance and disciplinary hearings and appeal hearings.
As a probation review meeting does not fall into either of these categories. Therefore, it could be argued that there is no right to be accompanied. However, as one outcome of the probation review meeting could be the termination of employment, it is better to extend the right to final probation review meetings.
This may seem impractical as, if you tell someone that they have the right to be accompanied at their final meeting then you are giving a strong indication that probation has been unsuccessful. Therefore, how do you manage the right to be accompanied in practical terms?
You have a number of options when it comes to dealing with the fact that employees would have the right to be accompanied at a probation fail meeting. They are as follows:
Option 1 – Hold the Meeting but Be Ready to Stop
Whilst employees have the right to be accompanied at certain employment meetings by either a colleague or trade union representative, employers are under no obligation to inform them of this right.
We would always encourage employers to be open and transparent with their employees regarding their rights. However, one option is to not inform the employee of their right to be accompanied.
You arrange the meeting as usual, hold the meeting and deliver the outcome. But, you MUST stop the meeting if the employee raises the fact that they would like to be accompanied.
If the employee raises that they would like to exercise their statutory right to be accompanied, you need to stop the meeting. Then you allow them sufficient time to find someone to accompany them, and reconvene.
Option 2 – Extend the Right to Be Accompanied to Every Final Probation Review Meeting
This is the other end of the scale to option 1. With this option, you tell everyone that they have the right to be accompanied to their final probation review meeting. You give them sufficient notice of the meeting to allow them to arrange for someone to be with them.
Ultimately, if you have managed the probation process well and given regular feedback throughout, the outcome should not be a surprise to anyone. If someone has been receiving positive feedback throughout, they will likely know the outcome will be positive and will not go to the effort of arranging for someone to be with them.
If you are going to be failing someone’s probation period, they should already be aware that this is a possibility. You should have told them at the previous review meeting that there are some serious concerns. You should have explained that significant improvement is needed in order for employment to continue. Of course, things can go downhill quickly. But, if you’ve generally seen good performance and then a dip, you’ll likely be extending probation rather than ending employment.
By telling everyone that they have the right to be accompanied at their final probation review meeting you will avoid any unnecessary delays and will ensure that you operate within UK employment law.
Option 3 – Split the Final Meeting Into Two Parts
A final option is that you hold the final probation review meeting in two parts.
- First, you do the actual review meeting where you give feedback, discuss progress etc. This would be similar to the other probation review meetings that you have held during the probation period.
- Then, hold a second meeting where the individual is informed of the outcome of the probation review process.
In this scenario, you will invite the individual to the outcome meeting, explaining their right to be accompanied. Again, as the individual will have had feedback they will know what the outcome is going to be. Therefore, they’ll be able to judge whether they wish to bring someone with them to the meeting.
There really is not much difference between options 2 and 3. The only difference is that with option 3, the person accompanying the employee only has to listen to the outcome of the probation itself rather than needing to listen to all of the feedback.
Whichever approach you decide to take, you need to apply it consistently.
3. What Is the Best Way of Avoiding Claims of Discrimination in Probation Reviews?
Once you have identified your approach to probation reviews, it is strongly recommended that you continue with this approach going forward.
Employees with under 2 years’ service cannot bring an unfair dismissal claim against you. However, they can bring a claim for discrimination against any of the 9 protected characteristics.
The 9 protected characteristics are
- Age
- Disability
- Gender Reassignment
- Marriage and Civil Partnership
- Pregnancy and Maternity
- Race
- Religion and Belief
- Sex
- Sexual Orientation
A scenario where a discrimination claim can arise is when someone can point to an individual who does not have the protected characteristic and demonstrate that the two individuals were treated differently. So, adopting a different process for dealing with probation reviews for some people than others will leave you open to allegations of discrimination.
Want to Know More?
Managing probation periods well can be tricky but it is worth developing a process that works for your business.
If you would like some help with managing probation periods then we’d love to have a chat with you.
You can give us a call on 0203 319 1649 or contact us using the contact form, and we can arrange a time to talk you through managing probation.
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