Your new recruit has completed a 6-month probation period. Prior to your final probation review meeting, you note that there are some performance issues that need to be addressed before you offer to make the position permanent.

In this scenario, extending the employee’s probation period is often the best of course of action.

Why offer a probation period extension?

Some employees will need a little longer to settle into the workplace than others. By extending the probation period you will afford an employee extra time to work on the areas in which they are falling short.

When is a probation period extension appropriate?

Typically, a probation period extension will be appropriate where the employee has shown promise but needs more time to improve in certain areas such as:

  • technical performance
  • hitting required targets
  • punctuality and attendance
  • general behaviour in the workplace
  • acquiring a new skill to allow them to meet the demands of the role.

It is also reasonable to extend the probation period of employees who take a long leave of absence during probation. This will allow the employee to make up the time lost through illness and afford you a more thorough opportunity to decide if the employee meets your required standards.

For how long should the probation period extension last?

The length of a probation period extension will depend on the circumstances but typically the extension should last no less than one month and no longer than three months. It is also permissible to review the position on a month by month basis. 

The employee should be provided with a probation period extension letter confirming the length of the extension. 

The letter should include the following:

  • the reasons the extension is necessary
  • any targets or KPI’s the employee is required to meet
  • the date of the next review meeting.

What law allows employers to extend a probation period?

There is no legislation that specifically deals with probation periods. It is important therefore that you include details of your probation period, including how extensions to it will operate, in your employment contracts and policies.

Will the contract of employment need an express term dealing with probation period extension?

Yes, as probation periods are not legislated for it is recommended to include the discretion to extend the probation period as an express term in your contract of employment.  

Inserting a clear clause in the contract confirming your right to extend the probation period will minimise the likelihood of a misapprehension developing and the risk of claims being made in connection with a probation period extension. Both parties should sign the contract confirming that they have read, understood and will be bound by its terms.   

Contractual protection will not prevent an employee from making a claim under employment equality legislation. If an employee feels they are being treated differently on the basis of any of the nine protected grounds (race, civil status, sexual orientation etc.) as part of their probation review, a claim for discrimination is likely to be made.

What if the contract of employment is silent on probation period extensions?

If the contract of employment is silent on the right to extend the probation period, three options are available to you at the end of the probation period:

  • confirm that the employee has passed probation and make the position permanent
  • inform the employee that they have failed the probation period and begin a dismissal process
  • seek to agree an extension to the probation period with the employee (in the absence of a contractual clause dealing with extension the employee may not agree)

Clearly it is preferable to avoid the third scenario by including a relevant clause dealing with probation period extension in the contract of employment.

In the absence of statutory provisions, it is doubly important ensure that you include a probation extension clause in the contract of employment. Keeping a thorough paper trail will help further minimise the risk of confusion and claims. A paper trail documenting each step in the probation process including written notes of discussions at probation review meetings will support your case in circumstances where you need to demonstrate that you have acted reasonably at all times before or after a dismissal.

Extending probation is not a disciplinary procedure

A probation period extension represents a second chance for a promising employee to prove their worth. It should not be viewed by either side as a punishment but a further opportunity for the employee to demonstrate their suitability for the position and your organisation.

BrightHR’s smart HR software will ensure you effortlessly monitor all candidates on probation and that you never miss a probation performance review. 

 

  

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