In general, employers are legally entitled to extend an employee's probation period, provided they have reasonable grounds to do so and follow proper procedures as set out in the employment contract and company policy. However, when an employee is absent due to long term sick leave, employers should proceed with due care and caution to avoid the employee bringing a claim against them for disability discrimination.

In the first instance, employers should ensure that clear and detailed clauses regarding an employee's probation are documented in both the employee’s contract of employment and the company’s probation policy. In such clauses, employers should set out under exactly which circumstances the employer will be entitled to extend an employee's probation and for how long such an extension may last. It is important that such provisions are in place from the outset of the employee’s employment and apply to all employees within the company. Failure to maintain such consistency could give rise to an employee's right to bring a claim for disability discrimination.

In any instance, employers should establish a clear line of communication with the employee regarding their absence and its impact on their probation period. Employers should bring the relevant provisions of the employment contract and probation policies to the employee's attention as soon as they become aware of the issue. Furthermore, it is important that employers ensure that the employee understands that any extension of the probation period is not a reflection of their performance, but rather due to the lack of sufficient time to assess their suitability for the role because of their extended absence. Such clear and open communication should allow a positive working relationship to form between the employer and employee and thus work to reduce the likelihood of disputes arising in due course.

Furthermore, where an employee is on extended sick leave due to a disability, employers have a duty to make ‘reasonable adjustments' under the Disability Discrimination Act 1995, to ensure that the employee is not disadvantaged in comparison to other employees who are not disabled. In appropriate circumstances, an extension of the probation period can be considered to be a reasonable adjustment as it allows the employee sufficient time to further 'prove themselves' and make clear to the employer that they are a good fit for the role.

The employer must ensure that the extension of the probation period is thoroughly documented in writing, stating the reasons for the extension and the new end date. This record should be signed by both parties to signify agreement and avoid any misunderstandings or disputes arising later on.

Overall, employers should apply their probation policies consistently across all employees to avoid any claims against them on the grounds of discrimination. If the employer is at any point uncertain about the appropriate steps to take, or where the extended sick leave concerns complex issues, the employer should seek legal advice to ensure they do not fall foul of employment law.

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