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Can I extend a probationary period from 3 months to 6 months?

By Charles Power on July 4th, 2012

Workplace Bulletin

Welcome to today’s Bulletin!

Because we always get such great feedback when we do them, I thought it was about time we did a few question and answer editions of the Bulletin.

So today, you’ll get the answers to two questions we get asked a lot here at the Bulletin – and on Friday, you’ll get the answers to another two.

Let’s get started! (Questions are answered by Holding Redlich).

Question 1: Is it possible to employ someone on a fixed-term contract on a 6 month rolling basis (i.e continue renewing the fixed-term contract every 6 months)?

Yes, you can employ someone on that basis. However, you should tread carefully if you decide to do so.

Once you renew or extend a fixed term contract one or more times, you create in the employee an expectation that it will be renewed on the next occasion. If, contrary to that expectation, you decide to let the contract expire, the termination of employment may be found to have been initiated by you – which means the employee might be able to access redundancy or notice entitlements or even make an unfair dismissal claim.

If the main reason you are engaging employees on a fixed term basis is to avoid unfair dismissal laws, or notice and redundancy entitlements, and there is no operational reason for this type of engagement, then you will have to treat the employees as if they were engaged on an ongoing basis.

Question 2: Can I extend a probationary period from 3 months to 6 months? If so, is there a time by which I would need to inform the employee (i.e would I need to inform them a month before or can I wait until as late as the day before)?

Probationary periods may only be extended by consent or if provided for in the original contract of employment (i.e. “your probationary period may be extended for a further 3 months at the company’s sole discretion”).

If this is the case, then you can advise the employee that their probationary period has been extended at any time prior to the expiration of initial 3 month probationary period – you don’t have to do so within a certain timeframe.

Remember, probationary employment is no longer exempt under unfair dismissal laws. Regardless of whether an employee is employed on a probationary basis there is a mandatory qualifying period for employees to access unfair dismissal laws (6 months’ service, or 12 months if you employ less than 15 staff). Therefore, don’t worry about extending probationary employment from 3 to 6 months if you are worried about unfair dismissal laws!

So there you have it!

Remember, if you’re a paid-up subscriber to the Employment Law Practical Handbook, you get access to the Workplace Helpdesk, where you can email your short employment law questions and get an answer from one of our experts within 72 hours!

Not yet a subscriber to the handbook? Click here to get a free 14-day trial.

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