Employer's question: Notifying employees of an extension to their probationary period

04 Nov 2021

Employer’s question:

Our Employment Contract provides for a three months’ probationary period during which we can give one week’s notice.  We have the right to extend the probationary period at our sole discretion.  After the probationary period or any extended period has expired, the notice that we are required to give is three months.  

We overlooked extending the probationary period because of the Christmas holidays.  Can we extend the probationary period now or are we obliged to give three months’ notice if we want to terminate employment?

Answer: 

These were the facts that were considered by an Employment Tribunal in 2007.  The employer successfully argued that a term should be implied in the employment contract allowing the employer to inform the employee within a reasonable period after the probationary period had expired whether they had completed it successfully, especially in the circumstances of that case where, on the date of expiration of the probationary period, the employee was not in the office because of a holiday which had been agreed with their line manager. 

On appeal, this was rejected and the employee was entitled to the longer notice period.  The employer had had sufficient time to complete their assessment of the employee, they had the right to extend the period but had failed to do so and they had known that the employee was not going to be available on the last day of the probation period.   

Probation period expiration dates can be overlooked but nowadays,  there are sufficient safeguards against this happening where key dates can be logged onto the computer calendar and shared with colleagues. To avoid a rushed last minute decision, employees should be carefully monitored during the probationary period and where their performance is not satisfactory, regular meetings held and guidance provided about the standards that they should be meeting.  

The agreed probationary period should normally be sufficient for the employer to come to take a view about the suitability of the employee, especially as that is the period in which the employee should be working hard to impress the employer. 

However, there are circumstances in which a probationary period should be extended for example, due to sickness, disability or maternity leave in relation to the employee or a long term absence by the line manager.  In such circumstances, it would be correct to extend the probationary period so that the employee has a fair chance to prove themselves.  If, however, notice of such extension is not provided within the probationary period itself, the probationary period will be deemed to have been successful and any longer notice period will be applicable.

If you have an enquiry or would like to discuss the issues raised in the above Q&A further, please get in touch with your usual employment contact at DMH Stallard or with Alan Finlay by email or by phone on 020 7822 1564.

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