Employment law SOS: probationary periods
1 min read
Q We employed a machine operator six months ago on the basis of a six month probationary period, during which his employment could be terminated on a week's notice (this notice period was to be increased to three months on confirmation of satisfaction completion of his probation). Although, the employee has achieved all output targets set for him during this six month period, his manager has on-going concerns about his attitude and now wants to extend his initial probationary period by a further three months. Can the employee object?
You can lawfully impose an extension of a probationary period on the employee if you have a contractual right to do so. However, even if there is a contractual right, an employee should be notified that a probationary period is being extended before the original probationary period expires. Effective management of probationary periods requires on-going review and feedback throughout. It should not come as a total shock to an employee if their position is not confirmed at the end of their probationary period.
If you don't have a contractual right to extend, then imposing an extension would technically amount to a breach of contract. However, the employee may well be minded to 'agree' to an extension if the potential alternative is dismissal. Although employees require two years' continuous employment to present a complaint of unfair dismissal to an employment tribunal (subject to certain limited exceptions), an employer needs to ensure that they don't expose themselves to a discrimination claim by virtue of their operation of probationary periods as employees are able to present claims for discrimination from day one.
If you do decide to extend your employee's probationary period, he or she should be advised of the following:
- The reasons why you feel unable to confirm him or her in post at the end of the initial probation period.
- What particular improvement(s) or additional targets he/she is going to be expected to achieve during the extended period.
- The date on which the extended probation will end and the timetable for feedback during the extension.
- What will happen if he/she fails to improve/perform satisfactorily during the extended probation period, i.e. being given
