Furlough and probation periods: Where do we stand as an employer?

When taking on new staff, most employers choose to have probationary periods of three to six months which must be detailed in employment contracts by law. Probation periods ensure the opportunity to provide a thorough induction, monitor performance and enable employees to settle into their role.

The end of the probation period is usually marked by are view where performance will be discussed and decisions will be made whether to continue employment, terminate it if they have failed their probation period or extend it if there are improvements to be made.

Obviously, with staff working remotely during the COVID-19pandemic or perhaps on furlough, the usual recruitment and probation process has been affected. So, what do you do if you have put a new staff member on furlough before they finished their probation period OR a new employee has been working remotely and you haven’t been able to assess performance in the usual way?

Firstly, it is important to know that there isn’t a legal framework for probationary periods, and they are purely contractual. Because employment rights are earnt by length of service, an employee’s probationary period doesn’t affect their employment rights at all. It may however affect internal company policies such as benefit entitlement or notice period, so it is important you are aware of these before making any decisions.

Extending the probation period

What you will need to consider is your business’ internal policies and the employment contract. Probationary period clauses in contracts must be reviewed and the requirements stated must be followed. Once all the checks have been made and the decision is made to extend the probation, the reason for this must be communicated to the employee as soon as possible and what is means for them must be made clear. If you have multiple staff in this situation, make sure a consistent approach is taken with all of them to avoid discrimination claims.

In normal circumstances, when a probation period is extended it is likely due to concerns over performance, so it is likely to be seen as a negative. If an extension is made due to a furlough period or working remotely, it will be because you want to make sure the employee has had adequate support and the opportunity to prove what they are capable of. It is important to emphasise this and make it clear to them it is not negative, it is for mutual benefit.

Make sure you discuss the plan with the employee and lay out how you intend to work with them. Set a date for the end of the extended probation period and communicate this to the employee in writing so that expectations and intentions are clear.

Letting furloughed staff go during their probation period

From the employer’s side, probationary periods have no bearing on notice periods as these are set out by law and based on length of service. Generally, during probationary periods, employers choose for employees to provide a shorter notice, which is then extended if the employee passes their probation.

If ending an employee’s contract whilst they are on probation, it is important that the appropriate length of notice is given, whether it is dismissal or redundancy. There does also have to be a valid reason to let an employee go, regardless of the length of time an employee has been with the company. Reasonable dismissal can include:

–      Incapability of carrying out the role

–      Misconduct

–      Redundancy

–      Some other substantial reason (e.g. their presence in the role is affecting client relationships)

–      Illegality (e.g. an employee is required to drive as part of their role and they have lost their driving licence’

Normal processes for letting an employee go apply when an employee is on their probation period and/or on furlough. Although unfair dismissal cannot be claimed until after an employee has two years’ service, they can claim wrongful dismissal if their contract is ended without following a fair dismissal process so it is important that the correct procedures are followed.

For more advice on making redundancies whilst employees are on furlough, please read our last blog.

If you need some advice on furlough and probationary periods, we’re here to help. Give us a call on 01509 861262 or email us at hello@colaw.co.uk to speak to one of our experts!

The information provided in all of our blogs reflects only a narrative of some elements to consider on the topic. The blogs do not contain considered legal advice and should not be relied upon as advice. Please see our website terms and conditions for full details of our disclaimer. If you are interested in obtaining advice, please contact one of our lawyers who will be happy and able to advise you on your own particular circumstances.

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