How to handle probation periods

A guide by citrusHR Consulting

So you’ve taken on a new member of staff, and you’ve planned their induction using our guide – but have you checked they can work for you? Or planned their probation?

If the answer is no, you’ll certainly want to read on; even if the answer is yes – it’s worth checking you haven’t missed something important. Mistakenly employing someone without the right to work in the UK can lead to fines of up to £20,000, and mis-managing probation could make a bad hire a costly mistake.


Obtain, Check, Copy – checking your new hire has the right to work in the UK

The three words that you’ll want to keep in the forefront of your mind when checking if someone has the right to work for you are: Obtain, Check and Copy. These are the three crucial steps to properly checking on a new employee’s identity:

Obtain

The first thing you must do is obtain from the employee their original documents, copies simply will not do.

There’s a specific list of accepted documents including:

  • A valid UK Passport
  • A Passport or a National ID card (an EEA/Swiss citizen)
  • A registration certificate of permanent residence for an EEA/Swiss citizen or their family member
  • A current Biometric Immigration Document issued by the Home Office to the holder showing they have a right to stay indefinitely in the UK or have the right of abode here
  • A current Immigration Status Document issued by the Home Office showing they can stay in the UK indefinitely with a document showing their permanent NI number and name issued by a government agency or previous employer
  • A birth or adoption certificate issued in the Channel Islands, Isle of Man or Ireland together with a document showing their permanent NI number and name issued by a government agency or previous employer
  • A certificate of registration or naturalisation as a British citizen, together with a document showing their permanent NI number and name issued by a government agency or previous employer

Some of the above documents, such as Immigration Status Documents, will need to be re-checked once they have been renewed. It’s therefore worth noting the date in your diary of any expiry dates for documents such as these.

Check

You must now check that any documents you have been given are in fact genuine. Should you encounter any issues with fraudulent documents in the future, these checks will give you what’s called a ‘statutory excuse’; a waiver of liability in any mistaken civil offence.

So, here’s what you need to do – in the presence of the employee:

  • Check that photographs and dates of birth are the same across all documents they give you, and check their appearance so as to avoid impersonation
  • Make sure no expiry dates for admission to the UK have passed
  • Check restrictions for your type of work – students for example may have limited permission to work during term time, so you must obtain details of their academic term and holidays for the duration of their studies
  • Of course, make sure – to the best of your knowledge – the documents aren’t fake!
  • If there are different names across documents, check why this might be with marriage certificates, divorce decree, deed pole etc. These should also be copied

So you’re now two thirds of the way through your checks. Just one final element to go…

Copy

You need to take a record of the documents that were presented to you. Take a clear copy of the most important pages of any documents you obtain from your new employee – don’t forget to note the date you checked it on, too!

With Passports as an example, you’ll need to take a copy of the back page with their picture, nationality, date of birth, expiry etc.; and if necessary any page which might be relevant to their right to work for you. This may include certain stamps or visas etc. on previous pages.

Other valid documents need to be copied in full. For a Biometric Residence Permit for example, it needs to be both sides. And remember, when you’ve taken the copies, keep them on file for no less than two years after the employment has come to an end.

If in doubt use the governments’ Employer Checking Service to help you:

https://www.gov.uk/employee-immigration-employment-status 


Probation

Probation isn’t something that’s covered in employment law, but could be almost as expensive as not checking someone’s right to work if it’s managed poorly.

You may already have a probation clause in your employment contracts, the standard being three months. This should be sufficient time for you to get to know your employee and whether they’re right for the job, but really it depends on the nature of the role and how long it should take a new hire to get to grips with it.

A probation period can be extended if necessary, however you’ll need to communicate this in writing before the end of the period.

Managing staff early on

As part of your induction process, you should make sure you clearly communicate what you expect of your new hire. During their probation it’s worth monitoring their performance regularly, this should be used as a two way feedback mechanism so that you can highlight any issues, and so can they. If you keep notes of these conversations, you can refer back to these in future.

If you don’t believe the new hire is right for the role, it can be difficult to know how long to give them. Either way, the sooner you can conclude the issue the better, you should bring them in for a formal probation review if you have serious concerns.

How to conduct a formal probation review

First of all, refer back to any informal meetings you may have had and gather any evidence you can. For example, if they are consistently late to work, be prepared with examples.

Invite them to the meeting, and begin by explaining its purpose is to consider their ongoing employment with you.

Give the employee a clear explanation as to why they have not met your expectations. For example, give clear evidence of what you’ve observed and contrast it with what you’d expect from them. When doing this, be honest and direct, but not accusatory – focus on what you’ve observed, rather than any rumours and supposition about how they have behaved.

Once you have made your points, you should let them respond with any reasons why they may be finding things difficult. Have an open mind, after all this is a review not a dismissal.

Once you have concluded the meeting, take time to consider what you will do next.

After your probation review

You may decide to keep the staff member on, giving them another chance.

Often, it’s not until they are invited to review that they realise how serious their situation is, and sometimes performance can improve off the back of a formal meeting. If you do keep them on, just remember to extend their probation period in writing.

There is time, effort and cost involved when extending a trial period like this. You should be confident that there is a good chance that the employee’s performance will in fact improve before you extend the trial period. It won’t be helpful to either party if you prolong the agony. If you do decide that things just aren’t working out, you’ll need to take a couple of steps to terminate the contract:

1. Give appropriate notice to the employee – refer to the contract you issued, and see what you’ve written down. The legal minimum notice is one week if the employee has been with you for a month or more, and most people pay this notice rather than get the staff member to work it

2. Give an opportunity to appeal against the decision – you don’t legally have to provide this for a probation dismissal, but we find that it helps you to deal with any potential claims internally in the first instance, as opposed to through an Employment Tribunal. The most common claims at this stage are for Breach of Contract or some form of discrimination.


Some final points

Hopefully this will help you to manage your employees more effectively in the early days of them working with you. However, here are some final things to remember…

The document check:

  • Obtain original documents
  • Check that they are real
  • Copy them and keep them on file for two years after their employment ends

Managing Probation:

  • Don’t create unwelcome surprises – be open and transparent with the employee, so they know where they stand and you’ve given them ample warning if they aren’t hitting the mark
  • Don’t be ambiguous – ensure the employee knows where they’re falling short
  • Don’t delay the inevitable – if they aren’t working out, you’re wasting time and money and they could even move out of probation. Therefore, the sooner the employee knows the score, the sooner you can all move forward
  • Keep records – if you’re challenged as to your dismissal or extension of probation, you’ll need to refer back to these to show you’ve acted reasonably