There’s quite a bit to cover here, so it’s another longer read from us. We’ve cut out the unnecessary bits though, and we’d recommend sticking with it as this is an important one.

Whether your organisation retains a three, four, five or six month probation period will very much depend on how well probation is managed internally, and whether your managers have the skills, tools and support to manage it effectively within the new legal framework, without creating unnecessary risk for the business. In our view, six month probation periods don’t automatically need to be amended if you know you have a solid management team who won't let anything slip. But if you do decide to keep them, you’ll need to change how they’re managed to ensure key review and decision points take place at the right time and there's no risk of stepping over that 6 month mark.

What’s the best approach?

There are naturally pros and cons to both shorter and longer probation periods, and there isn't a one size fits all answer. One clear advantage of a shorter probation period is that the review and decision point falls comfortably within the new six month qualifying period for ordinary unfair dismissal. If, having followed an appropriate probation process, you decide things aren't working out, there's more breathing room to bring the employment to an end and give the required notice before the employee reaches six months' service.

The consideration is whether three or four months gives you enough time to make that assessment properly. In our experience within the creative industries, the first couple of months in a new role are often spent onboarding, learning systems and processes, understanding ways of working and generally finding your feet. It's often during months four to six that you start to get a much clearer picture of someone's performance, behaviours and overall suitability for the role and business.

We've seen plenty of situations where someone has successfully completed a shorter probation because there were no significant concerns at that point, only for issues to emerge in the months immediately afterwards. Once probation has been confirmed, those concerns then need to be managed through the usual performance, capability or conduct processes rather than through the probation process, which can make things more difficult and time consuming for everyone involved, and will inevitably fall into the post 6 month service territory anyway.

That's one of the reasons we have historically recommended six month probation periods for many of our clients as they provide a more meaningful period in which to assess how someone is actually performing once they've had time to properly settle into the role.

So, there is a balance to strike. A shorter probation gives you more distance from the six month unfair dismissal threshold. A longer probation gives you more time to properly assess the person in the role. What is changing from January is that, where you do use a six month probation period, you shouldn't wait until the end of those six months to start making the decision about whether the employment should continue.

Don’t forget about the notice period.

There's another important consideration which can easily get missed in all of this - notice period and how it impacts the timing. When assessing whether an employee has reached the qualifying period to bring an ordinary unfair dismissal claim, you can't necessarily just look at the date you tell them their employment is ending. Where an employee is dismissed without being given the statutory notice they're entitled to, the law can treat the effective date of termination as the date that statutory notice would have expired. For an employee with at least one month's service, that's normally at least one week's statutory notice.

So, for example, dismissing someone a few days before they reach six months and making a payment in lieu of their one week's notice doesn't necessarily keep the dismissal below the six month threshold. That additional statutory notice period can take them over it. This is why we wouldn't recommend working right up to the six month date and holding the end of probation review then. You need to leave yourself some breathing room.

If you're keeping six month probation periods, what should management of these now look like?

We'd suggest adjusting your standard review timetable:

Months 1–3: Managers should be having regular conversations about how things are going from both the organisation’s and the employee’s perspective. Any concerns should be discussed and plans put in place for improvement. Probation shouldn't be five months of silence followed by one big meeting.

Months 3–4: Hold a meaningful mid-point progress review. If there are concerns around performance, conduct, attendance or suitability, identify them clearly. Discuss what support has already been put in place and whether it's helping, what other support may be needed, the expectations of the role and what improvement is required. The employee should have a fair opportunity to improve.

Around month 5: Hold the substantive probation review. By this stage, the manager should have a reasonably clear picture of whether the employee is meeting the required standards.

If there are significant concerns and the conclusion is that the employee hasn't demonstrated the required standard or suitability for the role, this gives you time to properly consider the circumstances and, where appropriate, bring the employment to an end with notice before the six month period is up. If everything is going well, you don't have to pass their probation at month five. The employee can remain within their contractual six month probation period, with a brief final check-in before the end of month six. Assuming everything remains satisfactory, successful completion can then be confirmed in writing.

It’s important that your contractual wording supports this too, making clear that satisfactory completion of probation may be confirmed at any point up to the end of the stated probationary period.

What if there are concerns at month five but you're not quite sure?

This is where things become a little trickier. Historically, an employer might simply have extended probation for another month or two to give someone more time. Once the six month unfair dismissal qualifying period comes in, that decision needs more thought. Extending someone's probation doesn't extend the unfair dismissal qualifying period.

An employee can still be contractually on probation while having acquired the right to bring an ordinary unfair dismissal claim. That doesn't mean you can't extend probation, or that you can't subsequently dismiss someone for performance or another potentially fair reason. It does mean the legal risk and process are different once they have qualifying service, which is why we would generally advise against extending an already six month probation period simply to give yourself more time to decide.

If you're approaching the 5 month point and aren't sure whether to confirm the employee into post, that's the time to reach out to us. Better still, speak to us as soon as you're noticing concerns so we can help you manage them properly, rather than getting too close to that six month date when your options and the associated risk start to change.

The changes relate to ordinary unfair dismissal only.

Remember, the new six month qualifying period relates to ordinary unfair dismissal only. There are still plenty of employment protections that don't require six months' service and are there from day 1, including discrimination protections and a range of automatically unfair reasons for dismissal. So this isn't about rushing through dismissals before somebody hits six months. It's about making sure probation is actively and fairly managed throughout the period, concerns are picked up early, employees know where they stand and employers aren't making important decisions at the eleventh hour.

Conclusion

If 5-6 months gives you the right amount of time to genuinely assess someone in your business, and your managers have the right tools, skills and training to manage probations effectively as outline above, then there is no need to automatically replace it with a three or four month probation. But the six month end of probation date can no longer be the date in the diary that prompts someone to ask “Oh... have we done their probation review yet?”. Your managers need to be properly trained in managing probation periods well and effectively. Schedule reviews in advance and don't keep pushing them back. Build in earlier conversations, use month five as the key end decision point, and leave yourself enough time to properly deal with any concerns before the new qualifying period becomes relevant.

If you're currently managing employees through probation, want to review how probation works in your organisation, need line manager training or would like your contracts, policies or handbook updating in line with the Employment Rights Act changes,  please do get in touch with us at info@freshseed.co.uk.

And if you've already got someone approaching the end of their probation and you're not sure what to do, please don't leave it until the six-month diary reminder pops up. Get in touch with us sooner rather than later.