Tughans LLP on employment law and difficult workplace scenarios.

For February 2024, we have asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination, constructive dismissal or some other serious difficulty.

This month’s problem concerns:

“We have a new hire, who since their start date has had repeated sickness absences, missing almost half of their probationary period. The employee has missed several compulsory training sessions and concerns have been raised about their performance. They are nearing the end of their probationary period and, in the circumstances, we do not feel able to properly assess their suitability for permanent employment. How do we handle this?”  

Probationary periods are commonplace during the early stages of the employment relationship. They essentially serve as a trial period for employers to assess whether an employee is a “good fit” for their role and within the wider organisation.

Ideally, particulars of the probationary period should be outlined in the contract of employment, including clarification on the scope, term, length and how it will be managed. Typically a probationary period lasts between three to six months and may include formal or informal assessments throughout. Of course, “one size does not fit all” and the length of a probationary period is likely to depend on the industry, nature of the job, the seniority of the employee and the timeframe required to assess their performance and suitability for continued employment.

This employee has been off sick for a large part of their probationary period, which has hindered their training attendance and likely impacted their performance. It has also prevented you from building an accurate picture of their long-term suitability. In the circumstances, it would be reasonable to consider whether you can extend their probationary period.

You should check the contract of employment to confirm whether you have the contractual right to extend the probationary period, and if so, for how long. If the contract is silent on the length of any extension, this will be at your discretion. You should consider factors such as the nature of the role, the improvement targets you will set and how long they will take to be achieved. You may decide to extend the probationary period by a specific number of weeks or months or equivalent to the length of their absence.

Most importantly, you should ensure that the probationary period does not last long enough for the employee to accrue qualifying service for unfair dismissal rights – one year in Northern Ireland. You must remember that the employee can take their statutory minimum notice entitlement into account for this purpose – so effectively they gain this protection after 51 weeks’ employment.

If the contract allows you to extend probation, you should invite the employee to a review meeting to inform them about your decision. There is no statutory right to be accompanied at a review meeting but you should ensure you follow your internal policies. At this meeting, you should notify the employee of your concerns and set improvement targets, indicating that you will review their performance again after the review period. Following the meeting, you should provide written confirmation of the reasons why you cannot currently confirm their permanent employment, areas of expected improvement and targets, the timeline for improvement and when their next or final assessment will be.

You should explore the employee’s reasons for their sickness absence and its impact on their performance. If they mention health issues, which could be a “disability”, you should consider whether you can make any reasonable adjustments which will help address any disadvantages they face. The actual extension of the probationary period, rather than dismissing a disabled employee at the end of the initial period, is likely to be a reasonable adjustment in itself. You may need to send the employee for an occupational health assessment, to confirm or rule out if they are indeed “disabled” and to ensure any action taken is in view of accurate medical evidence.

If you do not have the contractual right to extend the probationary period, the position is more difficult. Unilaterally, extending the employee’s probationary period is effectively a change to their terms and conditions of employment, which ordinarily requires their consent. However, you would likely explain to the employee that you would like to extend their probationary period to give them a better chance to demonstrate their suitability for permanent employment, but if they do not agree, you would have to dismiss them for failing probation when the current contractual period expires.

Affording the employee an opportunity to improve will help demonstrate that you have followed a fair process. This is an important mitigating factor in the event of a claim. Given the employee has less than the minimum one year’s service for a standard unfair dismissal claim, the main legal risk is that they can still bring a discrimination claim, which does not have any qualifying service requirement. If the employee fails their probation due to performance issues caused or worsened by their sickness absence, they may claim that they are “disabled” and that their dismissal was discriminatory. In certain specific circumstances, an employee can also bring an “automatic” unfair dismissal claim, which also has no minimum qualifying service.

If the situation does not improve during the extended period, you may have to consider dismissal. You should invite the employee to a further meeting to confirm your decision, and again follow up with the written grounds for termination, to help show that you have followed fair process and that your decision was for legitimate and non-discriminatory reasons.

If you do dismiss, the employee is still entitled to the usual statutory entitlements in terms of notice / payment in lieu and payment for accrued but untaken annual leave. Their contract of employment may allow you to give a shorter contractual notice period than when probation has finished.

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