Extending a Probation Period

extend probation period

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Probation periods allow employers the opportunity to gauge whether or not they have the right person for a role. In practice, however, the initial probation period may not prove to be long enough for the manager to formally sign off the new employee as passing their probation, perhaps due to performance issues. Extending the probation period allows more time for the employee to meet their targets and performance standards.

The following guide for employers examines the purpose behind these trial periods and the process involved, with a particular focus on how line managers can lawfully extend probation periods and the reasons they might have for doing this. We also briefly look at how any probation extension, including any subsequent decision to dismiss, should be dealt with.

 

What is a probation period?

A probation period is a trial period designed to provide the employer with better insight into whether or not a successful applicant is suitable, both for the job role and the business.

Even though an employer may have already invested a great deal of time and money in assessing the suitability of a candidate — based on their application, interview(s), and even written or practical assessments — this doesn’t necessarily mean that the individual in question will perform to the required standards, or conform to the standards of conduct, expected of them. How well a person performs in interview or under assessment, and how well they appear to come across personality-wise, doesn’t always translate into practice.

The reality is that it’s only ever really possible to assess how capable someone is, and how well they’ll integrate into the business and with colleagues, once they’ve actually started work. This means that it’s not unreasonable to require new starters to undergo a set trial period before making any decision to make them a permanent or fixed term member of staff — with the enhanced contractual rights that are typically associated with long-term employment.

 

How long is a probation period?

There’s no law prescribing the minimum or maximum length of a probation period although, for most permanent positions, this will be for between 3-6 months, allowing sufficient time for a series of performance reviews at set intervals throughout. The initial probation period will then result in the employee either successfully passing their probation, failing and being dismissed, typically on short notice, or their probation being extended for a further period.

Equally, there are no set rules around how long any extended probation period should be. This may be expressly provided for in an employee’s contract or, where contractual provision is made for an extension but the length isn’t prescribed, this will be entirely at the employer’s discretion. In these circumstances, this will very much depend on the nature of the role and the context in which the extension has been deemed necessary although, in most cases, it would be unusual for any extended timeframe to exceed the initial probationary period. For example, it would be reasonable to extend a 3 month probation period by a further 3 months.

 

Can you extend a probation period?

When deciding the terms under which a new starter will be required to work, less favourable contractual rights will usually be granted than those that the individual will benefit from once they’ve successfully passed probation. For example, a probationary employee may only be given the right to the statutory minimum notice period of one week, and the employer may decide not to apply their normal disciplinary and performance management procedures. This will enable the employer, where necessary, to terminate their contract on short notice.

The ability to determine the terms and conditions under which a new starter will work will also allow employers to incorporate the flexibility to extend probation periods. This means that, as long as provision is made within the contract of employment to extend any trial period, this right can be exercised at a manager’s discretion. However, the right to extend probation periods must be clearly set out in writing prior to the start of this period.

Very often, the length of any initial probation period will be a matter of negotiation between a prospective employer and successful candidate, although inclusion of the employer’s right to extend this period is fairly standard practice. The employee may prefer any contractual provision around a probation extension to limit the timescales involved and the circumstances in which this can take place, for example, for misconduct or capability issues, but most new starters would be unlikely to challenge this type of clause and regard it as wholly reasonable.

A standard contractual clause to extend probation periods could state, for example:

“The first 3 months of your employment will be a probation period during which your performance and conduct will be monitored. If, at the end of this period, your performance or conduct is not deemed satisfactory, this may be extended for a further period to be determined by your line manager, but will be no longer than 3 months, on the same terms.”

Alternatively, the probationary contractual clause could state:

“The first 6 months of your employment will be a probation period, during which time your suitability for the position for which you’ve been employed will be assessed. The company reserves the right to extend this period if, in its’ opinion, such extension is necessary.”

Ideally, the probation period clause should also expressly state that the employee will not be deemed to have passed their probation unless they receive written confirmation to that effect — otherwise, this period may inadvertently lapse without any discretion to extend it. Where the contract of employment doesn’t make any express provision whatsoever to extend a probation period, the manager will need to seek the employee’s agreement to an extension.

 

Why would managers want to extend probation periods?

There could be various reasons why managers would want to extend probation periods but, in most cases, this is likely to be because they need more time to test or assess the capabilities or character of a person who is new to a role. This could be, for example, where there have been concerns over performance or conduct but they’re showing signs of continuing improvement.

It could also be where a probationary employee has been absent from the workplace for a significant proportion of their trial period through sick leave, where an extension may be necessary to enable the employer to evaluate their performance over a reasonable period.

An extended probation period will enable managers to further assess the employee’s suitability on a trial basis, without being forced into making a potentially premature decision as to taking them on. It will also ensure that managers are not forced into making a hasty decision to dismiss, and losing a potentially valuable member of staff in whom a great deal of time and money has already been invested — especially where a further period of time, perhaps with appropriate support or additional training, is likely to see them succeed.

By providing an extended period over which an individual can demonstrate that they’re the right fit for the job, and for the business, will also help to avoid any further recruitment costs on hiring their replacement. The decision to extend probation periods is essentially about protecting financial and business interests, ensuring that a promising individual is given every reasonable opportunity to show they’re suitable in the long-term.

 

Probation period extension letter

Managers, or any person responsible for dealing with a probationary employee, should inform the employee of any decision to extend their probation period in their final scheduled review meeting. This should be followed up in writing to confirm the terms of the extension.

Even if there’s no express contractual provision within the employment contract to extend probation periods, it’s still technically open to an employer and probationary employee to agree to this on final review, where appropriate, but again this should be clarified in writing.

A probation extension period letter should be used to confirm:

  • the fact that a decision or agreement has been made to extend the probation period
  • the basis upon which this decision has been made, or any agreement has been reached, for example, the nature of the conduct or capability issues in question
  • the length of time over which the probationary employee will be given to improve
  • the support options that will be made available to the employee
  • the way in which the employee’s progress will be reviewed
  • any specific targets and goals that the employee may need to meet.

 

The employee should also be forewarned of the potential consequences of failing to meet the requisite standards of performance or behaviour required of them — that their employment contract will be brought to an end — within the timescale provided.

 

Best practice for managers & HR

Below are some practical tips on how to effectively manage a probation extension period to provide the employee with every opportunity to address outstanding concerns:

  • Set clear targets and goals: in order to provide some form of reference point to assess the individual’s suitability for both the role and the business, and to create clear expectations, specific targets and goals should be set. This could be in the form of key performance indicators (KPI’s) to measure an individual’s progress, for example, the number of qualified leads obtained or new contracts signed, or by way of more generalised goals, such as receiving positive feedback from the employee’s team supervisor and work colleagues.
  • Schedule regular reviews: in order to effectively monitor and assess an employee’s performance during the probation extension period, including any specific targets and goals that may have been set, employees should undergo regular reviews. This will help to provide a good indication as to how they’re progressing, giving both parties the opportunity to identify and address any remaining ongoing issues.
  • Provide appropriate support: if the probationary employee is struggling, they may require additional training, supervision or some other form of support. It’s in the best interests of everyone to ensure that the right support is given so that the necessary improvements are made, rather than letting the employee go and starting the recruitment process over.

 

Dismissing someone on probation

It is also important for employers to be aware of employee’s rights during the probation period. If a decision is ultimately made to dismiss a new hire for conduct or capability issues, they should be given the opportunity to respond to any allegations, even where a full disciplinary or performance management procedure doesn’t need to be followed under the terms of their contract. This can be done during any final probationary review meeting, where a careful record should be retained about the issues raised and the response given.

The employee should also be provided with any dismissal decision in writing, with the reasons for this, and the effective date of termination. In most cases, the employee will be entitled to a statutory minimum of one weeks’ notice, unless their contract provides for longer.

It’s important to remember within this process that even during probation an employee will still have certain basic statutory rights, including the right not to be unlawfully discriminated against or unfairly dismissed on grounds that are ‘automatically unfair’. For example, where an employee fails probation for a reason connected to a protected characteristic — such as pregnancy or disability — this could amount to both unlawful discrimination and automatically unfair dismissal. The right not to be discriminated against, or unfairly dismissed because of a protected characteristic, arises from day one of employment.

This is a potentially significant area of risk for employers, especially where the employee has been absent during any probationary period due to pregnancy or sickness, and is dismissed because of this, so expert advice should always first be sought in these circumstances.

 

Need assistance?

The HR experts at DavidsonMorris are available to provide help on all elements of workforce management, including probation management and how to extend probation review periods. Speak with one of our specialists for assistance and guidance on a specific issue.

 

How to extend probation periods FAQs

Can employers extend probationary periods?

Employers can extend probationary periods, provided the contract of employment makes express provision for this, or agreement can be reached with the probationary employee for an extension to further assess their suitability for the role.

Why would a probation period be extended?

There are various reasons why a probation period would be extended although, typically, this will be because the employer needs more time to see if the employee is suitable, both for the job role and the business.

Last updated: 7 September 2023

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

Legal Disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct at the time of writing, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

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