• Shona

Failing Probation...

Updated: May 7

Sometimes, you can do and say all of the right things and yet somehow, it all still goes wrong.


SPOILER ALERT: THIS IS NORMAL



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As I have said on countless occasions, people are less predictable than you think! So when you have read all of my blogs, listened to all of my podcasts and followed all of the steps and someone still doesn't pass probation, don't sweat it.


So, what do we do when we have an employee on probation who isn't cutting it?


Well, if you've been paying attention, you will have already been having conversations with the employee about your concerns throughout their probationary period. Which leaves us with 2 scenarios: either the employee resigns, or they are dismissed.


Resignation

At this point in their probation, if the employee is fully aware of the issues and the lack of improvement, they may take the decision to resign from the position.


If this happens, check your contract of employment for their required notice period.


If the employee resigns without giving notice, there's not really much you can do about it. Whilst it may be annoying, realistically they have probably done you a favour. Having an underperforming employee at work can be more damaging than being a person short.


Remember to write to the employee to confirm their resignation and close off any loose ends such as the P45, any accrued holiday and the return of company equipment/uniforms/PPE.


At this point, if the employee is fully aware of the issues and can see the writing on the wall, they may take the decision to resign (if they haven't done so already).


Dismissal


In order to dismiss an employee in probation, it's best to follow good practice and formally invite the employee to a meeting where they may be accompanied by a trade union representative or a colleague. This is because employees can still take you to a tribunal even if they have less than 2 years service. It's harder to do, but not impossible. So, you must always be thinking, could I evidence I made the right decision to a judge?


Now of course this is the very last resort to take once all other avenues have been explored.

At the meeting you will discuss the issues at hand, what you have done to support the employee and discuss the employee's lack of improvements.


Now remember that you mustn't pre-determine the outcome of the meeting, as much as you might know what you want to do. So make sure you listen out for any mitigating circumstances that might affect the reasonableness of a dismissal decision.


For example, if the employee has been making lots of spelling mistakes but tells you in the meeting it's due to their Dyslexia, it would be reasonable to extend probation and put some supportive measures in place as opposed to dismissing them.


Remember that the meeting is a two way discussion - it's not a soapbox opportunity for you.


I have chaired formal probation meetings and disciplinaries where I have gone in quite sure of what I think the outcome might be and done a total 180 in the opposite direction because of what was discussed in the meeting. So always be open minded.


Once you have come to your decision, make sure you explain:

  • what you decision is

  • the grounds on which you based your decision

  • why any other option was not appropriate

  • what this all means for the employee.

When the meeting is over and done with, follow it up with a letter confirming what you discussed in the meeting. You'll feel like a broken record at this point but believe me, it's much better than trying to remember what happened 3 years down the line in tribunal proceedings!


Key things to remember about dismissals in probation:

  1. Employees with under 2 years service may be unable to claim unfair dismissal, but they can still claim for lots of other things at tribunal, so keep your procedures squeaky clean!

  2. Ensure you have exhausted all other options before you dismiss. I know it feels like a waste of time but again, think ahead to what it could cost you in time and money fighting a tribunal claim.

  3. Dismissal decisions should always be a reasonable response to an employment issue. Trust your gut instincts.


Shona x






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