I’m often asked about probation periods for nursery staff and so in this week’s blog I’ve covered some of the FAQs and things to consider when managing probation. If you’d like a template probation policy and template letters, click here to access the Early Years HR shop.
Firstly, I always like to mention that probation is not a legal status or term. The Collins Dictionary defines probation as “the act of proving or testing”. A probation period should allow a new employee a reasonable amount of time during which their employer can judge their character and ability to perform in their role.
How Long Should Probation Periods Be?
Each Nursery Manager will have their own preference on probation duration. I typically see probation periods of three or six months. The important thing to consider is how long do you think is reasonable for someone to demonstrate their ability to you? Can you really tell if someone is the right fit for your nursery in one month? But is it reasonable to say that it will take you nine or even 12 months to determine their suitability?
As a Nursery Owner, I use a six month probation. I think six months is a good timescale because it allows you to get a good feel for an employee’s peaks and troughs; you can see any cycles or patterns that they experience and work through this with them. It also allows for seemingly small things to be tested…can they still get to work on time during the winter months? Does their role still work for them in longer school holidays? We also use a six month induction, so it ties in nicely!
Legal Pointer – whatever probation duration you select, do not base it on a protected characteristic. Giving an 18 year old a six month probation but a 30 year a three month probation would be unlawful direct discrimination.
What’s Different about Probation Periods?
Most employers, not just nurseries, will apply different terms and conditions during a probationary period. Common terms include:
- A shorter notice period to end the employment during probation
- Entitlement to any enhanced payments for example company sick pay available only after probation
- Access to staff benefits or discount schemes
If you would like your nursery staff on probation to have different terms and conditions during probation, make sure this is clear in the offer letter, contract and any associated policies or handbooks.
Tell me more about notice periods…
So, let’s take this back a step and look at notice periods in general. We have two types of notice periods; statutory and contractual.
The statutory minimum legal notice from an employer is:
one week’s notice if the employee has been employed continuously for one month or more, but for less than two years
two weeks’ notice if the employee has been employed continuously for two years, and one additional week’s notice for each further complete year of continuous employment, up to a maximum of 12 weeks. For example, if an employee has worked for 4 years then they are entitled to 4 weeks’ notice.
Employees must give their employer a minimum of one week’s notice once they have worked for one month. This minimum is unaffected by longer service.
Contractual notice is anything above the statutory requirement.
Commonly, nurseries will apply the statutory notice periods during the probation period i.e. one week from either party and then increase this after probation to one month from either side. This gives the nursery more flexibility to end the employment when it is apparent that the new member of staff is not going to work out.
Add into your policy that a probation period can be extended by an extra three months to allow you extra time if things aren’t quite working out
How do I dismiss someone during their probation period?
I advise my clients to adopt a more flexible approach to disciplinary and performance matters during probation. It’s a good idea to say in your disciplinary policy that a different procedure will be followed during probation.
If someone’s performance or conduct is not at the required standard, you do not have to wait until the end of probation or a review meeting to dismiss them. In some cases, it is as simple as asking them to meet with you (no notice or formal invite is required) and informing them that their employment is being terminated with immediate effect.
It’s a good idea to have a clause in your contracts that allows you to pay them in lieu of notice and they can leave the nursery there and then.
Click here for a template letter to dismiss someone during probation from the Early Years HR shop.
All seems simple. So, any risks?
My clients know that I always talk about managing the risks with any process or decision. With probation dismissals, there is no risk of an unfair dismissal claim with under two years’ service so you’re safe on that one.
However, discrimination rights apply from day one so any decision that you make that’s discriminatory in nature leaves you at risk of a discrimination claim.
Automatic unfair dismissal applies from day one also so watch out for my blog coming soon on this topic too!
Confirming Probation Periods
You’re a busy Nursery Manager and there’s a 1000 things to do. So, you’ve left it a bit late to extend someone’s probation period…is it a problem? Potentially.
In the case of Przybylska v Modus Telecom Limited, the Employment Appeal Tribunal found that if an employer doesn’t extend probation within the probation period the probation is completed by default. In this case, it meant that Miss Przybylska was entitled to three months’ notice when the company ended her employment rather than one week’s notice which applied during probation.
Start Dates and Promotions
Two quick points to end on:
An employee’s original service start date (their start date of employment) is the date they started with you and not the date they completed their probation.
If you want to put someone on ‘probation’ after a promotion, be very, very clear what you mean by this. You cannot reduce or remove their statutory rights or contractual benefits for a new ‘probation period’ and of course if they have more than two years’ service they can claim unfair dismissal. Please get in touch if you want to talk about how to manage promotions as it’s very case specific and could get you in a tangle if things are not managed properly.