Tughans’ Employment Partner Patricia Rooney and Associate Emma Doherty, look at the issue of underperformance during an employee’s probationary period and considerations for employers should they wish to extend the period of probation.

Many employers will incorporate a probationary period into the contract of employment to monitor and assess an employee’s performance and suitability to the role in the initial stages of their employment. Such periods can vary in length, with the duration depending on the requirements and responsibilities of the job, and how long the employer requires to properly assess performance and conduct before confirming continued employment. A common probationary period is 6 months, with the contract stating that the employer reserves the right to extend that period before confirming employment.

If issues arise during the probationary period, for example in relation to underperformance, absence or misconduct, the employer could extend the probationary period to allow an opportunity for issues to resolve and performance to improve. The required approach to situations such as this will depend on individual circumstances and the reason(s) for any desired extension i.e. the approach in dealing with underperformance could potentially be different than concerns about behavioural issues and/or misconduct.

As a starting point, you should consult the contract of employment to confirm what the probationary period is and whether you have the contractual right to extend it, and if so for how long. If the contract enables you to lengthen the period, before the original probationary period ends or at the 6-month review point, you should invite the employee to a review meeting to inform them that their probation may be extended. There is no statutory right to be accompanied at a review meeting of this kind but you should consult your own policies. At this meeting, you should inform the employee of your concerns, none of which should come as a surprise to the employee. Throughout the probationary period, there should have been regular communication with the employee about performance, expectations etc.

The meeting will afford the employee an opportunity to provide an explanation about their underperformance, absence or misconduct and you should consider all points in mitigation. Following the meeting, you should promptly write to the employee outlining; the reasons why you cannot confirm their continued employment, areas of expected improvement, a timeline for improvement, relevant goals or targets, the new end date for their extended period of probation, or if appropriate their termination date.

If the contract is silent on the duration of an extended probationary period, it will be entirely at your discretion. You should ensure however that any extension is reasonable, taking into account factors such as the nature of the role and the basis for the extension, targets to be achieved within the time frame, also remembering that to extend a probationary beyond 12 months will allow unfair dismissal protection for the employee.

If you do not have the contractual right to extend the probationary period, you should have the agreement of the employee to extend their probationary period and confirm this in writing.

You should be aware that while the employee will not possess the minimum one year’s service for unfair dismissal rights at this time, they will have statutory rights, including the right not to be treated less favourably on grounds of a protected characteristic, or dismissal on automatically unfair grounds. For example, if an employee fails their probation due to frequent sickness absence due to pregnancy or a disability, this could lead to a claim for both discrimination and unfair dismissal.

If the situation does not improve during the extended period, you may move to dismiss the employee by inviting them to a further meeting and setting out the written grounds for termination.

Whilst the employee does not have the necessary service to bring an unfair dismissal claim, best practice suggests you should allow the employee a right of appeal against their dismissal, whether you end their employment without extending their probation, or at the end of an extended period. As above, you should be aware of all of the employee’s circumstances and the risks of allegations of discrimination. To have followed some form of dismissal and appeal process could help reduce the possibility of a successful claim of discrimination.

With less than one year’s service, the employee will be entitled to a statutory minimum of one week’s notice, unless a longer period of notice is stipulated in their contract of employment. You should review the contract and your ability to pay in lieu of notice.

For more advice of this issue or any other issues relating to the contract of employment, you can contact Patricia here.

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.