A recent appeal judgement in a case where an employee was dismissed during the probationary period in their contract prompted this blog and thoughts on what the first six months of employment should achieve. Do you frame it as probation or on-boarding? Is the clause on probation in a contract about improving performance, or is it an insurance policy to be claimed against a substandard hiring process, and how often is it utilized to remedy gross misconduct? Do you see these first six months as crucial in the development of a new employee whom you have deemed as having a part to play in your organisation's success? Every new hire in an organization has a shared optimism and an expectation that all will be successful. However, it is wise to be knowledgeable of all circumstances and potential outcomes.
Looking at these first six months, there is ample research to show that an effective on-boarding programme – the collection of formal and informal practices, programs, and policies enacted or engaged in by an organization to facilitate newcomer adjustment - delivers a return in adjustment by the new employee to a new organisation and team (culture), and a new job (work). It is a continuation of a competent recruitment and selection process where time is spent discovering if candidates fit both the culture and the work in an organisation.
Many organisations commence the on-boarding process weeks before the employee’s start date. Good organisations add to this with effective induction programmes, the kind of programmes that balance pushing out information with listening to what people want to know more about. The best organisations continue on-boarding activities up to 6 months after the date of joining with skilled immediate managers and assigned mentors playing parallel but different roles in the adjustment of the new employee. All the better that this process prioritizes adjustment and socialization, as well as attainable initial objectives.
Even if an organisation hasn’t the resources to engage with and deliver a lengthy and detailed on-boarding programme, research has shown that a basic programme with a number of components will mitigate against both actual and contemplation of early departure. This research has also shown a linear relationship between the amount of on-boarding interventions and the extent of this mitigation. The key to this is perceived organizational support, the experience of the employee being that you want to see your new employee succeed as much for them as for you.
However, if the outcome of this on-boarding phase, no matter how detailed it was, is a realization that performance is not at the level required, the probation clause in the contract exists. In the context of the employment relationship, probation is generally defined as, “a process of testing or observing the character or abilities of a person who is new to a role or job.” When set against the proactive and supportive ethos of on-boarding, it does represent a different outlook. In reality, the probation clause in a contract is a safety valve for a number of scenarios, most particularly an unsatisfactory hiring decision.
Recourse to the probationary clause in such circumstances requires decisive action. If a decision is taken to extend it beyond the typical six months, with a view to improving performance and attaining a minimum standard of same, it is important to ensure that this is limited to finish in a reasonable number of weeks from the attainment of 12 months service. With respect to qualification for the threshold which triggers protection under the Unfair Dismissals Acts 1997-2015, service is deemed to include contractual notice period and accrued annual leave. Therefore, if a decision is taken to terminate the relationship, this threshold of 12 month’s service is a critical reference point to work backwards from when determining the extent of the extension of the period.
There are also other Acts in play that supersede the employer’s right to enforce the probationary clause. These are the Organization of Working Time Act 1997, the Safety Health and Welfare at Work Acts 2005 and 2014, and the Protected Disclosure Act 2014. If a termination is deemed to be in conflict with the provisions of any of these Acts, it may be contested and penalties may result. There are circumstances where penalties in the form of awards against an employer mirror those allowed for under the Unfair Dismissal Acts.
Of equal importance is an awareness that the Employment Equality Acts 1998-2015 regulate the employment relationship immediately, and if a dismissal by reason of unsatisfactory probation occurs, it will be deemed to be unfair if it is proven to be related to any of the nine protected statuses.
However, what was once written in the manner of custom and practice – as probation wasn’t specifically regulated by law – will now be transposed into law in response to an EU Directive by mid-2022. There will be little impact from this EU Directive, the Transparent and Predictable Working Conditions Directive, as its main provision will be to recommend six months as the appropriate probationary period, and it allows for greater periods for executive level staff. Nevertheless, it is important that the Directive is read in detail to make sure that company policies and their procedural application are correctly updated.
In summary, the aspiration remains of commencing the employment relationship positively with investment in on-boarding the new employee. Where this is unsuccessful, caution is required to ensure that a decision to terminate within the probationary period takes account of more than the Unfair Dismissals Acts.