This week the experts, Martin Brewer and Esther Smith advise on how to deal with extending an employee's probation period.
Should a meeting to extend an employee's probationary period be treated as a disciplinary meeting, i.e. have the right to be accompanied etc. or does their lack of one year's service preclude that?
Martin Brewer, partner, Mills & Reeve
No it should not. Legally speaking the term "disciplinary meeting" is pretty meaningless anyway. The right to be accompanied is found in section 10 of the Employment Relations Act 1999 and that right is limited to disciplinary and grievance hearings, which I take to mean a hearing as a result of which a disciplinary sanction may be imposed (or a grievance determined). A meeting to extend someone's probation is not a disciplinary hearing unless the extension was imposed as a disciplinary sanction which would be unusual to say the least.
If the employee has less than a year’s service they cannot, generally speaking, challenge the fairness of an employer’s actions. Therefore there is no need (or legal requirement) to go through a disciplinary procedure if wanting to extend a probationary period. It may be helpful if your contract provides that the employer may extend the probationary period at any time prior to the end of the initial probationary period, but even without such a provision, an employer can make this decision itself so long as it communicates it clearly to the employee.
If the employee does not like it, they have two choices – either put up with it and stay on board and put their energy into persuading the employer that they are good enough to get past probation; or leave.
In reality, all the time the employee has less than a year’s service the only implication of a probationary period is to enable the parties to part company on shorter notice than they would be able to later. Clearly there is a benefit to the perception that both parties are 'getting to know' the other, and that there is a need to impress but in legal terms the implications of probationary periods are relatively limited.
Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information, please visit Thomas Eggar.