Is your employee going to fail probation? Here are the steps you need to take first

Posted on: March 18th, 2019

The team at CV Library explains what you need to think about and how to manage the process if a new employee is not likely to pass probation.

Unfortunately, not every hire works out, even if you have a strong and successful onboarding process in place. If you’ve recently taken on a new recruit, but they’re proving to be the wrong fit for your business, you might be thinking about terminating their employment once their probation period is up.

Before you do, there are a number of steps you need to take to ensure that you follow the correct procedures and give them a fair chance to improve. To help you out, we’ve outlined the steps you need to take if you think your employee is going to fail probation.

Arrange a catch up

First of all, you should arrange a catch up to speak with them informally. This should take place a few weeks before their probation period is due to end.

The employee may have no idea that you’re unhappy with their progress so this is a good opportunity for them to highlight any areas they’re struggling with, or any problems they’re facing. In turn, it gives you a chance to offer additional support or training where necessary and see if you’re able to overcome these challenges and help them get back on track. You’ve gone to the time and expense of recruiting this person, so it is worth seeing if there’s anything you can do to turn them into an ideal employee, rather than going back to square one.

Set an unofficial time for them to improve by. You don’t necessarily have to tell them that you’re setting a date, as this could add to the pressure, but set yourself a timeframe in which to monitor their progress.

Set up a review meeting

The week their probation period due to end, it’s time to conduct a performance review. This is your opportunity to discuss the situation with them and let them know in stronger terms that they’re not meeting the terms of their probation.

Again, they may be able to highlight any issues they’ve come up against or suggest the best way they can rectify the problem.

During this meeting, make sure you provide evidence to back up your concerns. It may be that your new recruit decides the best course of action for them is to simply leave the business once the week is up. Alternatively, you may both agree to extend their probation period for another one to three months if they can convince you that they can turn things around.

Put everything in writing

If you’ve decided to extend their probation period, then you should give them a letter which outlines the main points of your meeting and the new date that their probation will end. If you don’t confirm this in writing then there is a risk that their employment becomes permanent and you can’t then enforce the (usually) shorter notice period applicable for probationers.

Throughout the process of managing your new hire, it’s best to put everything in writing. Make notes of each meeting and keep any evidence that proves they aren’t meeting the terms of their probation. This will give you something to turn to at a later date, as well as helping you avoid any employment tribunal claims. An employee needs to have worked for you for two complete years in order to be eligible to bring a claim of unfair dismissal. This means that you can, generally, terminate someone’s employment at the end of their probation period without too much concern of possible claims.

However, a word of warning; if the employee feels that they have been discriminated against on the grounds of sex, race, disability, religious belief, age, sexual orientation, pregnancy or maternity, marital status and civil partnership, or gender reassignment (for example they were impeded in doing their job because of a disability, or they feel that their manager made inappropriate comments about their sexual orientation and didn’t give them a fair chance due to bias), then the two year rule doesn’t apply.

Book the final meeting

Are things still not working out? It’s time to call a final meeting to terminate their employment. Check whether your disciplinary procedure applies to employees on probation and, if it does, follow that procedure. If not, then still invite them to a meeting and let them know that they can bring a colleague or representative along with them, should they wish to. It’s important that you provide a strong case for why their employment won’t be going forward and refer back to your discussions from previous meetings.

Check that they understand why their employment is coming to an end and check that they don’t have any further questions or problems that need to be addressed. At this point, you need to make sure you give them a formal letter that outlines their official leaving date and details the final payments they will receive, including any entitlement to accrued holiday.

Have you followed the correct procedure?

It’s not as simple as letting someone go during or after their probation period. You need to make sure you’ve followed the steps above to protect yourself from any unfair dismissal or discrimination claims, but also to ensure you’ve given your new employee a fair chance to improve and show that they can do the job.

This post was written by the team at CV Library, with assistance from Amy Richardson in our Employment team. If you’d like more information on employment law, please contact a member of the team here.