Question: We have an employee who applied for a higher level position which is a key role in our organisation. She interviewed really well and we felt she would fit in with the new team and do a great job.
The new role required some initial training which seemed to go well but now, four months into the new role, she is showing a lacklustre attitude and fundamentally doesn’t seem to be showing the attributes we need for the position. This has led to a deterioration in her relationship with her new manager and colleagues.
The manager says that she doesn’t believe that things are going to work out and is asking whether we could argue that she has failed her probationary period in the role. What are our options?
Answer: This is an issue that often arises with internal moves, as unsuccessful recruitment with internal candidates is much more tricky than dealing with an external candidate who has little employment law protection. An employee with more than 2 years’ continuous service has protection against unfair dismissal and therefore cannot be put on a probationary period in the same way as a new external recruit. In particular this can be a problem where staff are redeployed following a redundancy situation (it is not clear whether that is the case in the situation you have described).
However, although existing employees cannot be put on the same kind of probationary period as new starters, this does not mean that their development in their new role cannot be monitored, and regular review meetings and monitoring are still a good idea. It sounds as if this person was previously a valued employee, so it would be worth the manager discussing with them what has gone wrong and giving them an opportunity to improve.
It is potentially possible for new roles to be on a trial period, but that would need to have been made clear from the outset and it does not sound from your question as if that was the case here. If you use a trial period you need to make it clear how long the trial period is, and what happens if either party feels the trial period has been unsuccessful. For example, you could specify that the person would return to their previous role. It is important to give this careful consideration, because often the previous role will have been filled.
In situations where an employee has been redeployed as an alternative to redundancy there is a statutory 4 week trial period, and if the trial is unsuccessful, the employee can leave and still get their redundancy payment. This statutory period can be extended by agreement between the parties, but that would need to be carefully documented and it is a good idea to take advice if you are planning to do this.
If there is no trial period in place (and assuming the employee has no interest in going back to their old role) then it would be a question of going through a performance management process with the employee in their new role, i.e. setting clear objectives and review periods, and after a reasonable opportunity to improve, issuing a series of warnings eventually culminating in dismissal. Alternatively you could take advice about the option of offering her a Settlement Agreement, as you may be able to reach an amicable settlement which could be more cost-effective than months of management time spent on performance managing her.
For any future internal moves it would definitely be worth getting a clear trial period in place. This should be included in the terms when an existing employee is offered a new position with you.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).