Employer’s Question: Extending a Probationary Period

15 Mar 2021

Q: One of our new starters has ended up on furlough for a large part of their three month probationary period. Can we keep on extending their probationary period so that we can assess them properly once things are back to normal?

The starting point here will be the wording of the section of their employment contract dealing with probationary periods. If the contract only refers to a three month probationary period, without any right to extend, then the employee’s probationary period will end at the three month point, even if you haven’t had a chance to assess them fully.

If the contract is more helpful, it will either specify the ability to extend for a further period, or may state that the probation period is not completed until confirmed in writing. The first of those two scenarios will still present you with some limitations, particularly if the period of furlough continues for some time, however the second does give you scope to extend further.

If you continued to extend a probationary period indefinitely, it could raise issues of breach of trust and confidence, however if you are simply looking to achieve a full three month assessment, that should not become an issue.

If the contract is not particularly helpful, remember that the employee will still need to reach two years of service to gain protection from unfair dismissal, which does give you something of a safety net if they do not meet expectations once they return from furlough. The only real difference will be whether their notice period increases once probation ends, or whether they become entitled to additional benefits at that point.

If you have similar issues in your business and would like further advice, please contact Will Walsh by email at Will.Walsh@dmhstallard.com or by phone on 01293 558540.

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