The next step

Probation period

[Clause]

The dangers of extending probation

What’s a probation period?

A probation period is an optional trial that allows you to assess a new hire’s suitability for a job role. You can also link contractual entitlements and certain benefits to the successful completion of a probation period.

For example, the right to receive contractual sick pay, instead of statutory sick pay, could kick in only after a probation period has ended, i.e. it’s not a contractual entitlement from day one.

Three options

Most employees who are subject to a probation period will be entirely satisfactory, but some won’t be. So, you’ll have three options as the end of a probation period approaches. These are:

• confirm employment because you’re satisfied with performance and conduct
• extend probation to allow further time for improvement because you have some concerns about performance or conduct; or
• dismiss because performance or conduct has been unsatisfactory and you don’t believe there will be a sufficient improvement.

No contractual right

Where you decide to extend a probation period, there are some dangers. The first is that you should only extend probation where you’ve reserved the specific right to do so (see The next step ).

If there’s no such provision in either the job offer letter or the employment contract, and your new hire won’t otherwise agree to a probation period extension, you’ll be in breach of contract.

Bad feelings

The second is that your new hire may perceive the extension of the probation period to be some form of punishment. This could trigger resentment, especially if the new hire feels they’ve done their best, and it may become problematic down the line if their role is subsequently confirmed.

To avoid this, you should make it clear that the extension isn’t a punishment or a disciplinary sanction. Also, set out in writing your expectations; why they’ve not been met and what the new hire must do to meet them to your satisfaction.

Hidden claims

A probation period should only be extended where you have solid reasons. If you don’t, a new hire may well have grounds for a tribunal claim. For example, if you extend it due to a couple of insignificant niggles about their performance, the new hire could accuse you of bullying.

Equally, if you extend probation due to unsatisfactory attendance but absences are linked to the new hire’s disability, then they are likely to have a discrimination claim. The same is true if they appear to have been singled out for having a protected characteristic, e.g. age.

Tip. Only extend a new hire’s probation period if it’s absolutely necessary and there’s likely to be a satisfactory improvement during that time. If this clearly won’t happen, or the new hire is miles away from your expectations, then dismissal may well be the better option.

For a probation period clause, visit https://www.tips-and-advice.co.uk , Download Zone, year 24, issue 16.