Extending Probation Periods: A Guide for Employers

Probation periods are a standard feature in many UK employment contracts, giving employers a defined window to assess whether a new employee is suited to the role. But what happens when an employee shows potential but hasn’t quite met expectations by the end of the initial probation period?

In such cases, extending the probation period can be a valuable tool. However, extensions must be managed carefully. If handled improperly, they can expose employers to legal risks, including breach of contract, discrimination claims, or even constructive dismissal. This article explores how employers can lawfully and fairly manage probation extensions — with a focus on practical application under UK employment law.

 

The Legal Status of Probation Periods

 

There is no statutory law in the UK governing probation periods. They are a contractual arrangement between the employer and employee, usually set out in the employment contract or offer letter.

Probation allows the employer to monitor performance, conduct, and attendance during the early stages of employment. However, once employment has commenced, the individual has the same basic statutory rights as any other employee. These include:

 

• Protection from discrimination under the Equality Act 2010.
• Entitlement to statutory minimum notice.
• Eligibility for statutory sick pay and other day-one rights.

 

This means that probation must be managed fairly and lawfully — regardless of how long an employee has been in post.

 

Including the Right to Extend in the Contract

 

A probation extension is only enforceable if the right to extend is clearly written into the employment contract. A well-drafted clause should:

 

• Specify the initial duration of probation (typically three or six months).
• State that the employer may extend the probation period.
• Outline the maximum total duration of the probation period.
• Require confirmation of any extension to be made in writing.

 

If this clause is missing or unclear, an extension could be invalid. In such cases, allowing the original probation period to lapse without action may imply that the employee has successfully completed probation.

Best practice: Anticipate the possibility of an extension when drafting contracts. This provides clarity and protects the employer’s position should an extension be required.

 

When Is It Appropriate to Extend Probation?

 

Probation should only be extended for legitimate, evidence-based reasons. Common scenarios include:

 

• The employee is progressing but has not yet met all expectations.
• There has been significant absence, such as illness or parental leave, that has limited their opportunity to demonstrate capability.
• The employee is new to the industry or has had limited support due to delays in onboarding or training.

 

The key principle is fairness. Employers should avoid using probation extensions arbitrarily or in a way that could disproportionately impact certain groups.

 

Legal Risks to Be Aware Of

 

Breach of Contract

Extending probation without a contractual right to do so — or without the employee’s agreement — can constitute breach of contract. This may result in claims for constructive dismissal, particularly if the extension is accompanied by reduced rights or altered expectations.

Tip: Where no contractual extension clause exists, always seek the employee’s written agreement before proceeding.

 

Discrimination Claims

If the extension is influenced, directly or indirectly, by a protected characteristic such as disability, pregnancy, or race, employers may face discrimination claims. Under the Equality Act 2010, these claims can be made from day one of employment and carry uncapped compensation risks.

Tip: Make decisions based on documented performance or business-related reasons. Avoid assumptions or generalisations, especially regarding protected characteristics.

 

Automatically Unfair Dismissal

Some dismissals — including those linked to whistleblowing, health and safety concerns, or exercising statutory rights — are considered automatically unfair and are not subject to the usual two-year qualifying period. Extending probation does not shield employers from these types of claims.

 

How to Extend Probation Fairly: A Step-by-Step Process

 

1. Review the Employment Contract

Before any action is taken, confirm:

• Whether an extension is permitted.
• What length is allowed.
• Whether any notice period is affected.

This avoids breaching contractual terms and ensures that the extension is lawful.

 

2. Conduct a Review Meeting

Hold a probation review before the initial term ends. This meeting should be structured and constructive:

• Give honest, specific feedback on performance.
• Acknowledge any mitigating factors.
• Explain the rationale for proposing an extension.
• Invite the employee to respond and discuss any support needed.

A respectful, two-way conversation improves transparency and reduces the likelihood of misunderstanding or dispute.

 

3. Confirm the Extension in Writing

Following the meeting, write to the employee confirming:

• The new end date of the probation period.
• The objectives they are expected to meet.
• Any support or training that will be provided.
• A date for the final review.

Ask the employee to sign and return the letter to confirm their understanding. This helps avoid future disputes and demonstrates procedural fairness.

 

4. Provide Structured Support

An extension should not simply delay a decision — it should offer a genuine opportunity for improvement. Employers should:

• Set realistic, measurable targets.
• Offer mentoring, training, or shadowing as needed.
• Schedule regular check-ins to monitor progress.
• Record discussions and document improvements or ongoing concerns.

This not only supports the employee but provides the employer with a solid evidential base if a decision to dismiss is later required.

 

5. Conduct a Final Review

Before the extended probation period ends, conduct a final formal review. Based on the outcome:

• Confirm successful completion and update the employee’s status.
• Or, if performance remains below expectations, follow a fair process to terminate the employment, ensuring the correct notice is given.

 

How Long Can a Probation Extension Be?

 

There is no statutory limit on the length of a probation extension. However, excessively long probation periods may appear unreasonable and undermine the employer’s credibility. As a general guideline:

• Initial probation: 3 to 6 months.
• Extension: Up to 3 months.
• Total duration: Ideally no more than 9 to 12 months.

Keeping probation periods proportionate helps maintain morale and demonstrates fairness.

 

Common Mistakes to Avoid

 

While probation extensions can be a valuable tool, even well-intentioned employers sometimes fall into avoidable traps. Missteps during this process can lead to confusion, disputes, or even legal claims. To ensure that probation extensions are both fair and legally sound, employers must be alert to the following common errors — and take proactive steps to avoid them.

 

• Failing to act before the probation ends: Letting the period expire without action may imply confirmation in post.
• Not confirming the extension in writing: Informal or verbal extensions are harder to enforce and open to dispute.
• Withholding support during the extension:Without added support, employees may be set up to fail.
• Using probation to bypass employment rights: Most statutory rights — including protection from discrimination and entitlement to minimum notice — apply from day one.

 

Special Situations

 

Absence During Probation

If an employee has been absent during probation due to illness, maternity leave, or other statutory leave, an extension may be reasonable. However, it must be:

• Proportionate to the time lost.
• Free from discriminatory intent.
• Clearly explained and agreed upon.

Employees should never be penalised for exercising statutory rights.

 

Internal Promotions or Role Changes

Some employers apply probation periods to internal promotions or transfers. If dismissal follows an unsuccessful probation in such cases, it must be handled with care — the employee may still have full unfair dismissal protection due to their continuous service. A fair process and consideration of redeployment options are essential.

 

Template: Probation Extension Letter

 

Here is a simple structure for confirming an extension:

 

[Employer Letterhead]
[Date]

Dear [Employee Name],

Following our review meeting on [date], we have agreed to extend your probation period until [new end date]. This will allow further time to assess your performance in the role of [Job Title].

During this extension, your focus should be on the following objectives:
[List specific areas for improvement or development].

To support your progress, we will:
[List support to be provided, such as mentoring or training].

We will meet again on [date] for a final review. At that time, a decision will be made regarding the successful completion of your probation.

Please sign and return the attached copy of this letter to confirm your understanding and agreement.

Yours sincerely,
[Manager Name]
[Job Title]

Employee Acknowledgement
I confirm that I have read and understood the terms of my probation extension.
Signed: ___________________________
Date: ___________________________

 

Conclusion

 

Extending probation can be a positive step — giving employees additional time to develop and demonstrate their suitability. However, it must be approached lawfully and with care. By embedding the right to extend into contracts, engaging in clear communication, and offering meaningful support during the extension, employers can reduce legal risk and enhance their people practices.

When managed properly, probation extensions are not just a tool to assess performance — they’re an opportunity to invest in potential and build stronger employment relationships from the outset.