A very long probation period

I’ve been in my current job two years today.  I’m guessing my team will have the flags out when I arrive at work this morning, by way of celebration.  Maybe.

Here in the UK, only now (or a week ago if you take my statutory notice into account) do I really have full employment rights.  Only now, do I have the ability to challenge my employer if they had unfairly dismissed me, or treated me so badly that I simply could not stay and so resigned.  Before today, unless I was being discriminated against for a protected characteristic such as gender, pregnancy or disability, or some important but not quite so often used stuff like trying to assert my statutory rights or being a member of a trade union, then I didn’t have that many rights at all.  My employer could, before today, have simply dismissed me.  Just because.

Up until an amendment by the current Government in 2012, I would only have needed a year of service with my employer to obtain these rights.  It is fair to say that this time period has moved around over the years, up, down and back up again, depending on the government of the day.

When it comes to employment contracts, most of them, wherever you work, have a probation period.  Personally, I loathe them. Nothing says ‘we aren’t really sure about you yet’ than a contractual clause that allows you to exit someone sharp left if you later decide their face doesn’t fit after all.  Too often, probationary periods are used to deal with the outcome of poor recruitment and selection procedures, or an unsatisfactory induction process.  The phrase makes me itch too. It makes it sound like beginning your new job is akin to committing a criminal offence.

But despite those personal bugbears, I recognise why companies feel that they need them.  With even the very best of recruitment and on-boarding efforts sometimes it just doesn’t work out for one or both of the parties.

Some people are surprised to learn that both legally and practically probation periods mean very little.  The ability to dismiss someone quickly and without much process (or indeed notice) in the first few months really just rests on the fact that, as long as you are not breaching those rights that exist from day one, then employees aren’t able to bring a claim for unfair dismissal, and that the law only provides for one week’s notice per year of employment (unless you happen to have contractually provided more).  Unfair dismissal law as it stands today therefore, is one big, fat two year probation period.

There is much talk at the moment, especially on the run up to the election, on employment issues to be tackled.  The political parties are confirming their plans.  Even the CIPD has launched its own Manifesto.  I am yet to see anyone mention the issue of qualifying service to bring an ET claim.

The difference between one year and two might not seem much, in the grand scheme of things.  I’m arguing that it is.

The increase from one years’ qualifying service to two was part of an overall aim to reduce the amount of employment tribunal claims going through the system.  It was estimated at the time that it might reduce claims by 2000 a year.

Only there is a problem with that number.  We have no idea in what circumstances those hypothetical 2000 employees left their employer.  It is tempting, or perhaps easy, to think that it was related to performance grounds.  That perhaps their employer has been saved from some terrible ‘red tape’ that would have impacted their organisation, or cost them unaffordable sums of money.  Or that these hypothetical employees were on the employment tribunal ‘gravy train’ and bringing vexatious claims.  © The Daily Mail.

But we just don’t know.  Maybe, just maybe, they are 2000 employees denied justice in a system that already makes it difficult for employees to challenge bad employers and bad employment practice.  And sadly, there are plenty of these around, whatever the legislation.

Here’s the thing. No employer needs two years to figure out whether someone is right for the job.  I find it hard to accept that many employers will be encouraged to hire more people because of the move from one year to two, that it has a positive economic benefit, or that it will save employers or the tribunal system vast amounts of money.  I do find it easy to believe however, that there will be managers and companies where they simply wanted rid of people and this makes it easy to do just that, in a labour market that already includes far too much low paid, vulnerable work.  I do find it easy to believe that there are conversations taking place along the lines of ‘they have less than two year’s service so I can do what I like’. I find it easy because a long time ago, I used to work at a company where managers that said just that, and often.  When an issue arose concerning an employee, the discussion would start with an enquiry about their length of service. And that would frame the response and approach.

If employers are worried about an employee bringing a claim for unfair dismissal, then instead of looking externally to the law to help protect you, might I suggest looking internally instead.  Because if you treat people well, follow good employment practice, train your managers to deal properly with their people stuff, and act reasonably, then you have little to fear from an unfair dismissal claim, whatever the length of service someone has.

Now.  Where are those flags?

2 thoughts on “A very long probation period

  1. Interesting point of view. I agree with some aspects of this. But as a HR Consultant whilst I agree that there are plenty of ‘bad’ employers out there who will abuse this point of law; unfortunately there is an equal number of ‘bad’ employees. I have personal experience of a number of employers who DO treat people well, follow good practice, have sound training and are not only reasonable but generous – and they still get employees who are ungrateful and uncooperative and have a sense of ‘entitlement’. It is naïve to say theses employers have ‘nothing to fear’ from a tribunal claim for unfair dismissal; there is plenty to fear. Successfully defending such a claim is likely to cost in the region of £2500-£5000 if you take a fairly simple, one-day case (barrister or other representatives fees for the day, time spent collating the evidence, negotiation, time of witnesses on the day). For SMEs in particular, this cost is prohibitive, so they end up settling (usually for a couple of grand) because it is cheaper and quicker than actually sticking to their principles and defending it in court. Naturally, this then leaves the employer feeling like the employee got something for nothing, undeservedly, and it taints their view of all other employees. Until the system has a way of establishing whether there is genuine merit to a case before the employer has to commit any expense to their defence, this situation will continue. For that reason alone, I support the two-year rule, and the introduction of fees, because it gives a way out for employers who, despite their best efforts, end up with an employee who just does not ‘work’ (in every sense of the word).

    • I agree that within any system, there are some people that will ‘take advantage’ for want of any other term. This can be said about other areas of law too, personal injury and whiplash claims spring to mind. I also agree that this taints the views of the majority, especially when accompanied by sensationalist reporting. I too have received during my career malicious claims, and claims utterly unfounded in common sense let alone law, I am sure that most HR folks have. I do however feel that the balance has tipped too far towards employers. Claims that entirely lack merit can be weeded out in the early stages. Many workers with the two year rule plus fees on the top are essentially locked out of the system. Many workers, especially low paid ones. I feel that we need to find more balance in dealing with some vexatious claimants whilst allowing access to justice to those who really need it.

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