Covid-19 and Deferred Start dates and Probation Periods

We have been living with the Coronavirus pandemic for the last three months and many employers and employees are now facing concerns about start dates and probation periods that need to be addressed.

Some employees are rightfully concerned where they are due to or have recently, commenced new employment, while employers are finding it difficult to assess employees’ performance whilst they are working remotely.

Can an employee’s start date be deferred due to Coronavirus?

During the Coronavirus pandemic, there are many reasons as to why an employer may feel the need to defer an employee’s date of commencement. A decrease in demand will have a costly effect on any business and therefore a new employee may not be needed at this time. Employers may choose to defer a start date as many of their employees are working remotely and therefore this would impact the level of training a new starter needs. In this case a deferred start date could be more favourable for all.

As a new employee would have signed a contract it is important that a written agreement is put in place for the deferred start date. If an agreement is not made this could be a breach of contract.

Can a job offer be withdrawn because of Coronavirus?

Job offers that are conditional can be withdrawn if the conditions of the offer are not met. For example, if the offer is conditional upon a satisfactory reference which is not received. Withdrawing a job offer that has been accepted can give rise to a claim for breach of contract. If a new starter has not already commenced employment they are still entitled to be paid their notice period. If an employer does not pay the notice period there could also be the risk of a claim being made for damages such as the pay and benefits a new starter would have accrued.  

Can an employee’s probation period be extended?

Many employers are unable to assess an employee’s performance and conduct due to coronavirus work restrictions. As many employees are working from home it becomes difficult for employers to assess their progress. Equally many new starters may not be afforded  the same level of training and support while working from home or have had the opportunity to develop if they have been furloughed.  

It may be beneficial for both the employee and the employer to extend the probationary period. It is advised that agreement is obtained from the employee in this instance, and it should be extended before expiration of the first probationary period. It is common practice for extension periods to be from 3 to 6 months depending on the role. If a probation extension period is nearing 12 months it may be reasonable for the employer to dismiss the employee on the grounds that they have not successfully passed their probation, if sufficient time has been given for the employee to improve.

Employers should be mindful when extending a probation period to ensure there is no breach of contract or discrimination risks that put the employee at a detriment. Employees would be at a disadvantage and therefore may be able to make a claim if the reason for the extension is due to pregnancy related absences or sickness absence.

All conditions of employment whilst in a probation period remain the same in an extension period. 

Whether you are an employer or employee, for more information you can contact us on 03333 208644 or email law@jcpsolicitors.co.uk.