There are many myths about the status of new starters by which we are referring to staff with less than 12 months service and therefore much that can go wrong in terms of training, motivation and retention apart from the legal issues we shall be focusing on. Documentation
If you write a letter offering an appointment it is best to keep it brief, welcoming and compatible with other documentation particularly the written statement of particulars of employment (commonly but mistakenly called the contract). It is best to give new starters all their documentation as soon as they start or even earlier. Some employers will forget all about issuing the written statement once the person is on board or will hang on to the end of a probationary period. Apart from saving paper this approach has little to commend it. Not many probationary periods are for less than two months and the law says people must be given their written statement of main terms & conditions of employment within 2 months of starting work. It should be remembered that it is automatically unfair to dismiss an employee regardless of length of service, because they have asked for this statement.
Induction
There is little employment law basis for saying that employers should organise and implement a good induction programme but it does mean that people are likely to be productive sooner and less likely to leave or become otherwise disengaged if they are properly trained and looked after. On the other hand in health & safety legislation there is a real and serious requirement to properly induct people including covering subjects as varied as fire and emergency evacuation, work station ergonomics, manually handling techniques, and how to undertake their jobs safely, often referred to as safe systems of work. It is advisable to make sure that having inducted each new worker you have a record of what training you provided and when.
Probation
Probationary periods have virtually no legal basis whatsoever, other than in contract law. They give an employer a fig leaf to hide behind when they are terminating someone’s employment during or at the end of their probationary period.
One advantage of using a probationary period clause is that the length of notice during that time can be reduced. If you typically have employees on one month’s notice then you may wish to have a probationary term of only one week’s notice. Senior management may usually be on three months notice but during the first six months of probationary service it could be reduced to one month. The advantage of this is that if the person is not working out it is not so expensive to let them go as their notice is shorter during their probation.
There are three good arguments for reviewing employee’s progress on a monthly basis with them. If they are struggling then the issue(s) may be resolved to everyone’s satisfaction if the employee is given guidance and support. It is always a good idea to record brief notes about these reviews and if there are on-going concerns make sure the employee is given a copy of the notes so they fully understand what they need to do to improve. If they are not working out as expected it may be better to end the relationship sooner rather than later. Finally the result should not come as a surprise. If they are doing well then they may need that reassurance; if not then they are much less likely to get emotional or look for some ulterior motive to explain your decision to terminate the contract.
There is another aspect to probationary periods which is often overlooked. It can be argued that proper monitoring and records will reduce legal exposure if the individual tries to claim that their dismissal is really due to discrimination or something other than poor performance. If probation periods are managed well then this is a powerful proposition. Sadly may people do not formally review as they go along, forget about the end of it and then try to catch up or just assume that the employee will know they are ‘permanent’ because they only really invoke the probationary clause when they want to get rid of someone. If you are not going to do it properly it is best not to do it at all. The other counter-argument is that there is at least one court case where an employee won a breach of contract claim because the contractual provision implied they were going to do it properly but did not!
if you do decide to retain probationary periods then make sure that you write in a probationary period of ‘up to’ x months or make very clear provision for termination during the period to avoid a claim that the probationary period of X months is actually a fixed term contract for that time and cannot be broken without compensation for the remainder if terminated earlier.
Finally probationary periods can be extended but you would need to write to the employee prior to the probationary period ending confirming that this is the employer’s intent and the reasons for it. Again using the term ‘up to’ a further 3 months is advisable.
Discipline
Probably the most contentious issue relating to new employees is the extent to which they are to be given the ‘benefit’ of the full disciplinary procedure.
We advise out clients to retain the flexibility to follow the spirit if not the letter of the disciplinary procedure during the first year of employment. This is to avoid getting bogged down in lengthy procedures when employers have the right to dismiss without any risk of an unfair dismissal claim. If the contract allows this flexibility then the risk of a breach of contract claim is substantially reduced.
Dismissal
The 3 step statutory procedure i.e. invite to a meeting giving reasons, hold a meeting to consider and give the right to appeal have conflicting legal status during the first year of employment has been repealed. Nevertheless. we advise our clients to follow this procedure for dismissal with all employees including those with less than a year’s service. Why?
The first reason for doing so is that if the employees often make a claim of discrimination or other prescribed reason for dismissal which has no limits to the compensation payable. The risk of a discrimination claim may appear remote but it is amazing how creative people can be when advised that they cannot bring an unfair dismissal claim. People may try to argue that the real reason for their dismissal is due to Issues of discrimination, having raised a health & safety concern or in some way they attempted to assert their statutory rights. In this way they can now submit a claim as the one year service rule does not apply in these situations.
The second reason is that there is the issue of fairness and natural justice but equally it is possible that holding a meeting/appeal may bring out a good explanation for their performance/conduct and lead to a fairer result. Another way of looking at it is that if a discrimination is being alleged then it is better dealt with or at least better understood at an early stage rather than through the Tribunal process.
It is advisable not to prejudge the outcome of a meeting. Go in with an open mind and present to the employee your concerns and allow them the opportunity to address what you have had to say. Once matters have been exhausted adjourn the meeting to reflect on what was said. If with hindsight what they had to say was fair e.g. they had not been given sufficient training and support then you may decide to extend the probationary period or advise them that they have one or two months to improve. If you are not convinced then inform them of that fact and terminate their employment.
Remember you should always confirm your decision in writing and offer them the right of appeal (see below).
Grievances and Accompaniment
Employees can raise grievances at any time and this right cannot be restricted to employees over one year’s service. It is important to deal with all grievances properly and this will include the right of appeal against the decision to dismiss someone with less that a year’s service.
It is often forgotten that the right to be accompanied at disciplinary or grievance meeting is not dependent on service so make sure that employees are aware of their right to be accompanied at a grievance or disciplinary meeting and never deny then the right to be accompanied by a colleague or accredited Trade Unions official. This is a free standing right.
Close to the edge
Finally a year is 51 weeks in unfair dismissal terms! There is only one thing worse than getting a call about dismissing someone at 53 weeks because the client forgot or miscalculated, and that is a call asking if it is okay to dismiss in the final few days of the year. If an employee is dismissed in the 11th month then employers have to be very careful to ensure that nothing they do could be construed as giving sufficient service to achieve 12 months service. With more senior people on say 3 months notice then care need to be exercised after 9 months. The way to avoid much of this worry is to have robust system for monitoring performance and not letting sub-standard employee get to anywhere near the 12 month mark. A formal review at 9 months should address most issues. If people are not really much good at 9 months then it is unlikely that any extra time will help.
To make sure that the employee does not come close to the year’s service once they have already stacked up nine months service if you decide to terminate then it would be best to do with immediate effect and give them pay in lieu of notice. Please bear in mind that what matters is not when you write the letter of dismissal but when they read it so either tell them in time and confirm or write with sufficient leeway to be sure they get it in time.
Clients are always advised to speak to your HR consultant first should you be considering dispensing with the services of someone with less than 12 months employment for the very reasons we have stated in this newsletter.
