All You Need to Know About Probationary Period

No matter how effective your interview process, you cannot predict how well a candidate will integrate into your organisation. A research says that 81% of individuals admitted to lying in their job interviews. 

The truth about probationary periods is that almost one out of five new employees fail to get past their probationary period or have their probationary period extended. What employers need is a well-drafted probationary period clause.

A good probationary period clause must:

• Provide both parties with enough time for them to evaluate the success of the relationship. Employees whose employment is subject to a probationary period are more likely to feel the pressure to succeed and, thus, are likely to improve their performance.

• Help manage expectations. Both parties should go into the relationship and be aware of the fact that if the relationship is not successful, either party can terminate it on short notice. It also gives both parties the chance to leave the relationship quicker.

• Prevent a situation where poor performance or misconduct is left unmanaged and the employee then obtains unfair dismissal protection. If an employee fails to pass their probationary period, the employer should be able to terminate their employment with a fair reason.

It is recommended to arrange a performance review before the employee's probationary period expires.
 

To-do List for Probationary Periods

An employer should benefit from probationary period clause, as they are more likely to have concerns about conduct or performance of the employee.

Therefore these are some points they should consider:

Terms of probationary period

• Employers should ensure the employee is aware of the probationary period, and what standards of conduct and performance are expected of them in order to pass their probationary period.

• The employer should also ensure necessary arrangements are in place to monitor the employee’s performance throughout the probationary period and record the performance review meeting before the end of the probationary period

Length of probationary period

• Employers who wish to include a probationary period clause in their employment contract should bear in mind that most probationary periods last for 3 to 6 months.

• Anything less than 3 months won’t give enough time for employers to assess the employee and anything longer than 6 months might put too much pressure on the employee.

Termination procedures

• Both parties should be able to terminate the employee’s employment on short notice. For example: if the usual notice provision is 3 months, it is recommended to have one-month notice provision during the probationary period.

• This balances between the not wanting to have the employee around for long once the decision to terminate their employment with having sufficient cover whilre trying to find a replacement for the departing employee

Extending the probationary period

• There will be several occasions where an employer might need a little more time to assess an employee’s suitability for the role. The probationary period clause should state that the employer has the right to extend the probationary period by the same period again.

• If the employer determines that they need more time to assess the employee’s suitability, the employer should write up the reasons why they are unable to confirm the employee in their role. If there are particular issues that need to be addressed or targets that need to be achieved, the employee should be notified in the writing.

Read more : HR Guide: Probation Extension Tips with Templates

Writing the confirmation

• A good probationary period clause should state that the employee will not pass their probation unless they receive written confirmation to that effect from the employer.

• This is also to encourage the employee to raise the issue of their probationary period if the employer forgets about it.

Probation in Malaysia

• In Malaysia, the Employment Act 1955 highlights the fact that a probationary employee enjoys all the same rights and benefits as confirmed employees.

• A probationary employee CANNOT be terminated without just cause or excuse.

• The law states that a probationary employee shall not be deemed confirmed unless there is an express act confirming the employee (by way of letter, salary increase or benefit entitlement)

• The termination notice is necessary, unless the termination is due to a misconduct. The notice period for termination must be according to the employment contract. If there isn’t a notice period, the notice period under Section 12 of the EA is applicable:

In conclusion, a well-drafted probationary period clause will protect employers in the unfortunate event that the person they hire doesn’t match the person they met in interview. This article is adapted from Michelle Last’s “Probationary Periods: What Employers Need to Know”

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