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Tuesday 28 June 2022

Probation: the hidden threat to your career?

By Craig Ryan

A probation period in a new job is usually seen as a formality. But if things don’t work out, it could pose a significant risk to your NHS career.

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“I’ve always sailed through my probations with flying colours. It hadn’t occurred to me that this would ever be a problem,” says Laura, a senior manager who lost her job at an NHS trust in England last autumn after her new manager deemed that she had failed her six-month probation period.

“There was no indication at all,” she continues. “I’d been getting messages from my manager and from clinicians I worked with saying ‘well done’, ‘brilliant job’, fantastic’ and so on. That’s why I was so shocked that [my manager] hadn’t passed my probation.”

Despite years of NHS management experience, Laura was given just a single cursory hearing before being dismissed with the legal minimum of one week’s notice. Worse still, her employer reneged on an agreement to give her a standard reference, hampering  her efforts to find work since. “I can’t believe I’ve had to apply for job seekers’ allowance—I’ve never had to do that,” she says.

Enthused by the opportunity of a new job, like Laura, most managers don’t stop to consider the risk a probation period could pose to their career.

In the NHS, probation usually applies on promotion or when you move to a new organisation. Although you’re unlikely to serve a probation if you’re moving ‘sideways’, managers being ‘slotted in’ to a post as part of an organisational change process will often have a four week-trial period. If either side decides this hasn’t worked out, you will usually return to the pool to await another suitable post or take redundancy.  

To have legal standing, the length of any probation period must be set out in the contract of employment. Three months has traditionally been the norm in the NHS, but six-month probation periods are increasingly common, especially in England. Your probation can also be extended if that’s specified in the contract.

Failing probabtion can be catastrophic

MiP national officer Stephen Smith says that while cases of managers failing probation are very rare, the effects can be catastrophic.

“I can count on the fingers of one hand the number of cases I’ve dealt with in nine years,” he explains. “The most common are legitimate concerns about development, training and competencies. Someone just needs more support, and it’s usual for probation to be extended in those cases. Then there are entirely spurious cases, very personal and more to do with the competence or insecurity of the recipient manager—or discrimination coming into play. Finally, there would be genuine failures, where the job’s just not right for someone or is far more than they can handle.

“In the vast majority of cases, people just sail through,” Smith adds, “but in the very small minority of cases where people actually fail, they usually end up getting fired. And there’s very little we can do about it.”

Jo Seery, an employment lawyer with Thompsons Solicitors, MiP’s legal advisers, explains that, like all UK employees, managers have no protection from unfair dismissal until they have served two years in post, unless the dismissal is for an “automatically unfair” reason: trade union activity, whistleblowing or discrimination on the grounds of race, sex, disability or the other ‘protected characteristics’ set out in equality laws.

“But the burden is on the employee to prove that their dismissal is for an automatically unfair reason,” she adds. “For example, if there is evidence that other employees without the protected characteristic would not have been dismissed, this may indicate that the reason for the dismissal was discriminatory.”

Few obligations for employers

As well as having few legal rights, managers on probation can miss out on the protection and support usually available to NHS staff, Smith warns.

“For people who are not on probation, there are usually all sorts of capability and performance management policies that come into play,” he says. “Before dismissal even arises, there could be informal meetings with your line manager or formal meetings with an HR person and your trade union rep. You may agree a performance plan and get the support and development you need. And there is a right to appeal. None of that necessarily applies in a probationary context.”

This “opens the door for subjectivity to enter the equation,” Smith warns, especially as employers have little obligation to give fair or objective reasons why someone has failed probation. 

“You hear things like ‘you’re not strategic enough’, ‘your work isn’t aligned with the trust’s values’ and ‘I believe I’ve got a legitimate basis for this decision’,” he explains. “Those are entirely subjective, personal assessments that you can’t challenge empirically. And that’s what’s really troubling about these cases.”

Recalling her six-month spell at the trust as “an absolute nightmare”, Laura says: “The writing was on the wall to be honest because [my manager] was very unpleasant to me day-to-day… There was no team in place and I had to start everything from scratch. I had demand after demand placed upon me from [my manager] to do this, do that. It just didn’t stop.”

Yet when Laura was told she had failed her probation, the only evidence her manager provided were subjective opinions about Laura’s personality. “There was a load of judgement about how I was and who I was; I felt very attacked,” she recalls. “[My manager] couldn’t refer to my targets because I hadn’t missed any. I was ahead of the game on everything.”

Due diligence: probation protection

Got a job offer? Carry out ‘due diligence’ by taking these simple steps to protect yourself.

  • Make sure you get a written contract and carefully check what it says about the probation period
  • Talk informally with your new line manager and other members of the team—what sort of person and what sort of organisation will you working for?
  • Look out for signs of existing problems within the team—will you be able to cope with them?
  • Be upfront about any deficiencies and don’t be shy about asking for support—you don’t need to impress people who’ve already offered you the job
  • Make sure your probation reviews are booked well in advance
  • Ask for regular feedback from your manager and colleagues
  • Keep records, especially copies of any praise or criticism
  • If you’re worried about anything, contact MiP for advice.

Poor recruitment practice

Claire Pullar, who has handled cases both as an MiP national officer and as an NHS manager, says probation failures can also stem from poor recruitment practices and pressure to recruit to short-staffed areas.

“Managers have the responsibility to recruit the right person for the role,” she explains. “If the right person isn’t there in the interview round then they shouldn’t just appoint anyone, but readvertise and find the right person.”

She emphasises that employers, while always putting patients first, need to show care towards staff who are at risk of failing their probation. This may include offering more support or, in some cases, help with finding a more suitable job elsewhere.

What if this doesn’t work out?

But while probation failures often reflect poor management decisions, most of the risk is borne by the employee, who may lose not only their job but their future career prospects too.

“I don’t think most people give the risk serious consideration,” says Smith. “You tend to see yourself moving up the career ladder and don’t stop to think, what’s my plan if this doesn’t work out?”

He recommends carrying out a form of “due diligence” on new job offers to see whether the risks are worth the rewards (see box above). That might include talking informally to your future colleagues, assessing your likely support and development needs and keeping an eye out for any “red flags” which might mean the job isn’t worth taking.

Of course, a promotion or a new job should be a cause for celebration, not a source of worry. But in today’s pressured NHS environment, managers can pay a high price, emotionally and financially, for a job that doesn’t work out.

“I’ve felt like the worst person on the planet,” says Laura. “It’s made me not want to go out of my house. Even speaking about it now, it makes me really tearful.”

While she continues to look for work, Laura’s experience has made her think twice about returning to the NHS. “I think the NHS is not what it used to be in terms of how it treats and looks after its people,” she says. “And that makes me very sad.”

Lead photo: Mario Heller/Unsplash

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