Employee Not Performing During Probation: What Can an Employer Do?
You've hired someone and the early signs are not good. They're missing deadlines, making repeated mistakes or struggling with the basics of the role. Probation is the time to identify these issues and manage them clearly, not to wait until the final week and hope for the best.
At a Glance: Managing Probation Underperformance
- No Exemption from Rights: A probationary period is a contractual tool, not an automatic legal shield against discrimination or statutory claims.
- Early Intervention: Address specific shortfalls with measurable targets immediately rather than using subjective phrases like "not a good fit".
- Contractual Review: Verify terms regarding notice periods, review milestones, and clauses allowing probation extensions.
- Health & Grievance Checks: Pausing to evaluate underlying disability disclosures or counter-grievances prevents high-risk litigation.
What is a probationary period?
A probationary period is normally a contractual arrangement for assessing suitability in the early stages of employment. It is not a legal exemption from employment rights. Check what your contract and policies say about probation length, review meetings, extension and notice.
Address concerns early
Be specific about the required standard and where it has not been met. Give examples, ask for the employee's explanation and identify any training or support gaps. Document the discussion and agree measurable objectives rather than relying on a general statement that they are 'not a good fit'.
Probation Milestone Framework: Target Setting, Review Points, and Extension Rules
Do I need a formal PIP?
Not always. A proportionate probation review process with clear objectives, support and review dates may be sufficient. However, the seriousness of the issue and any contractual commitments matter. A probation period should still offer a meaningful assessment, not an excuse for an arbitrary decision.
Can I extend probation?
Possibly, if your contract or policy permits it, or the employee agrees to a variation. Tell the employee why the extension is proposed, what needs to improve, what support will be given and when the next review will take place. Avoid assuming an extension changes statutory employment rights.
Can I dismiss someone during probation?
Potentially, yes, provided there is a lawful reason and you comply with notice, contract and other relevant obligations. Short service does not remove risks relating to discrimination, whistleblowing, certain automatically unfair dismissal reasons or other statutory protections.
What if they disclose a health condition?
Consider whether the issue could be linked to a disability and whether reasonable adjustments are needed. Dismissing somebody during probation without assessing an obvious disability related concern can be particularly risky.
What if they raise a grievance?
A grievance does not necessarily prevent probation management, but you should assess what it alleges and whether it relates to the manager or the performance concerns. Do not assume the complaint is simply a tactic to delay an outcome.
How should a probation dismissal be handled?
Review the evidence, contractual terms, relevant policies and legal risks. Give the employee a fair opportunity to respond where appropriate, communicate the decision clearly and confirm notice and final pay arrangements. Consider whether an appeal is required by policy or appropriate in the circumstances.
⚠️ Avoid these probation mistakes
Leaving feedback until the end; using vague criticism; failing to provide promised training; overlooking disability; missing contractual review dates; and assuming the words 'probationary employee' eliminate all legal risk.
How Nectar HR can help
Nectar HR helps employers structure probation reviews, prepare improvement objectives, manage extensions and assess dismissal risks before decisions are made.
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Nectar HR helps employers structure probation reviews, prepare improvement objectives, manage extensions and assess dismissal risks before decisions are made.
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