Though redundancy is affecting most sectors, CIPD research shows that overall hiring intentions have increased, with almost half of employers looking to grow their workforce in the final quarter of the year. In manufacturing, administrative and support services, in particular, recruitment confidence has increased significantly compared to the earlier months of lockdown.
However, in these strange times, hiring will be a very different experience. Not only is the recruitment process likely to be conducted remotely, but with so many unknowns – the impact/extent of the recession, the potential for a second wave and Brexit in the background – companies may be nervous to take on new recruits.
Crucially, with signs of a more permanent shift towards home working, monitoring new hires won’t be as easy as watching over their shoulder, potentially making it harder to assess their suitability for the role. In this context, using probationary periods can help.
As with any contractual clause, it’s important that probationary periods are well drafted. The first thing you need to decide on, and state in the contract, is the length of the probationary period. This will typically be one to six months depending on the level of the role; for senior positions, a longer probation period may be more appropriate, whereas competence for junior roles may be assessed fairly quickly.
You should state that, during this period, the employee’s performance and conduct will be monitored and assessed. Subject to them meeting the expectations of the role (refer to your induction plan), as well as other company standards (behaviour, attendance, core values, etc), their continued employment will be confirmed. Alternatively, if they haven’t met expectations, you reserve the right to extend their probationary period or terminate their employment. Careful wording is needed to ensure you can terminate employment before the end of the probationary period if needs be, rather than have to wait until the end.
Employees do have rights
It is an employee’s length of service, not their probationary status, that determines their rights. In some cases, the employee will need to have worked for you for a specific length of time to benefit. For example, the right to request flexible working only applies to those who have 26 weeks’ continuous service. Others apply from day one of employment. Annual leave, for instance, begins to accrue from the first day of a new job, as does the right to take maternity leave.
Those that are not statutory rights, such as the right to be eligible for a company bonus scheme, can be reserved until after an employee has completed their probationary period. This should be stated clearly in your contracts.
Regular performance reviews are essential
The purpose of a probationary period is to get the employee to where they need to be. Regular performance reviews will keep new recruits on a steady path to progression and enable you to identify areas for improvement and any additional training needs. More support in the induction stage has also been shown to play a big part in improving long-term staff retention.
It’s important that those joining the team while you are working remotely are not put at a disadvantage because of the unusual circumstances, so make sure performance reviews don’t fall to the wayside and check that they have everything they need to succeed. Set clear, realistic targets just as you would in the workplace, schedule regular virtual check-in sessions and find ways of bringing your regular training online. That way, should things not work out, employees will have less room to argue that the odds were stacked against them.
You can terminate contracts, but be careful
Employees normally need to have at least two years’ service to claim unfair dismissal, but there are some exceptions. Dismissing an employee during their probationary period will be automatically unfair regardless of length of service if the reason for the dismissal is discriminatory, or if it is connected to them making a protected disclosure, trying to assert a statutory right or for other reasons laid out in law, such as breach of health and safety.
You may have to give them notice
It’s normal for notice periods during probation to be shorter than your usual notice provision – for example, two weeks rather than four weeks – but keep in mind that employees who have worked for you on a continuous basis for one month or more are entitled to at least one week’s statutory notice. Of course, you may wish to set a longer notice period to give you time to arrange a suitable replacement or temporary cover.
James Tamm is director of legal services at Ellis Whittam