Probationary Period

barbsj_2

Hi Folks,

I know this has been covered in bit's and pieces over various threads but can't find any definitive answer and quite a unique situation.

I've been offered a new job, closer to home, less work travelling, a more relaxed atmosphere etc.

I've only been in my current job 4 months (started 01/06)

My contract states:


[FONT=&quot]PROBATIONARY PERIOD[/FONT][FONT=&quot] - Your employment is subject to a probationary period during which time you will be required to demonstrate to the employer’s full satisfaction your suitability for the position in which employed. Throughout the length of the probationary period your overall performance will be monitored. You will be notified in writing at the end of your probationary period as to whether you have successfully completed the probation. The employer reserves the right to extend the probationary period by a maximum of 3 months.[/FONT][FONT=&quot]Throughout the probationary period the Company reserves the right to terminate the employment without the requirement to implement the standard disciplinary procedures[/FONT][FONT=&quot].[/FONT][FONT=&quot] During the probationary period you are entitled to give or receive one weeks’ notice to terminate your employment.[/FONT]


This is made even more confusing by the fact that the company I work for was taken over and all staff were TUPE transfered to this new company with the above rule.


My previous contract just said a 3 month probationary period.


Where do I stand if they try to make me leave after 1 week?


Bit of employment Law for a Monday morning.


Thanks in Advance.


J

Undervalued

barbsj wrote: »

Hi Folks,

I know this has been covered in bit's and pieces over various threads but can't find any definitive answer and quite a unique situation.

I've been offered a new job, closer to home, less work travelling, a more relaxed atmosphere etc.

I've only been in my current job 4 months (started 01/06)

My contract states:


[FONT=&quot]PROBATIONARY PERIOD[/FONT][FONT=&quot] - Your employment is subject to a probationary period during which time you will be required to demonstrate to the employer’s full satisfaction your suitability for the position in which employed. Throughout the length of the probationary period your overall performance will be monitored. You will be notified in writing at the end of your probationary period as to whether you have successfully completed the probation. The employer reserves the right to extend the probationary period by a maximum of 3 months.[/FONT][FONT=&quot]Throughout the probationary period the Company reserves the right to terminate the employment without the requirement to implement the standard disciplinary procedures[/FONT][FONT=&quot].[/FONT][FONT=&quot] During the probationary period you are entitled to give or receive one weeks’ notice to terminate your employment.[/FONT]


This is made even more confusing by the fact that the company I work for was taken over and all staff were TUPE transfered to this new company with the above rule.


My previous contract just said a 3 month probationary period.


Where do I stand if they try to make me leave after 1 week?


Bit of employment Law for a Monday morning.


Thanks in Advance.


J

The only thing that complicates this is the TUPE if that takes your total length of employment over two years. Does it?

Otherwise they are only obliged to give you one week's notice to terminate your employment (unless your contract specifies more) and you have no protection against unfair dismissal during the first two years (excluding certain types of discrimination etc).

Probation has very little meaning in law. It cannot reduce your statutory rights (although these are limited) but it might give you some additional contractual rights in certain cases, but sadly not yours it seems!

If you can argue, due to the TUPE, that you have more at least two years employment then you would be entitled to one week's notice for each complete year (up to 12) and cound potentially claim unfair dismissal.

barbsj_2

Thanks Undervalued.


I started on 01/06/18 due to finish my probationary period 01/09 however as of today I still haven't had it reviewed.


The TUPE was due to take place 01/08 but didn't actually happen until 15/08



Thanks,


J

Undervalued

barbsj wrote: »

Thanks Undervalued.


I started on 01/06/18 due to finish my probationary period 01/09 however as of today I still haven't had it reviewed.


The TUPE was due to take place 01/08 but didn't actually happen until 15/08



Thanks,


J

Well then by any reckoning (assuming I am reading you correctly) you do not have two years service.

So, as I said earlier, they can terminate your employment by giving just a week's notice (or pay in lieu) and paying you for any accrued but untaken holiday. Unless you could show that the real reason amounted to unlawful discrimination you have no redress. They are not obliged to give you any reason at all.

The only thing "passing" probation may give you is an entitlement to a longer period of notice, depending on your contract, but if nothing is stated the notice remains at just one week until you have been employed for two years.

Sorry!

sangie595

Actually, I think Undervalued has misread the post. Possibly too much information!

I am also not clear whether you have continuous service with the employer prior to this job, but on the matter of the probationary period, case law is clear. The employer is required to tell you before the end of your probationary period if you have not passed. They have failed to do so. Ergo, you have passed. The law does not accept any reasons for the employer to justify why they didn't, so "being busy with TUPE" or anything else won't change that.

Everything except the probationary period is a red herring, which is making it confusing.

Undervalued

sangie595 wrote: »

Actually, I think Undervalued has misread the post. Possibly too much information!

I am also not clear whether you have continuous service with the employer prior to this job, but on the matter of the probationary period, case law is clear. The employer is required to tell you before the end of your probationary period if you have not passed. They have failed to do so. Ergo, you have passed. The law does not accept any reasons for the employer to justify why they didn't, so "being busy with TUPE" or anything else won't change that.

Everything except the probationary period is a red herring, which is making it confusing.

Maybe, hence my comment.

However unless the total employment is over two years all that remains is the notice entitlement. Unless there is a contractual entitlement to more notice having "passed" probation (by default) then it is a moot point.

sangie595

Undervalued wrote: »

Maybe, hence my comment.

However unless the total employment is over two years all that remains is the notice entitlement. Unless there is a contractual entitlement to more notice having "passed" probation (by default) then it is a moot point.

It's certainly implied rather than stated, but the OPs comment about where they stood of the employer tried to force them to leave with only a weeks notice suggested that notice is longer after the probationary period. But I may not have read that correctly as it isn't clear.

In case anyone is interested, as this point comes up frequently, the case law is Przybylska v Modus Telecom Limited. I had to go away and look it up as I can never spell it! The point is that without this, technically an employer could claim that someone who had worked for them for 20 years is still on probation provided they never say otherwise!

barbsj_2

Sorry guys to clarify. I only started this job 01/06/2018 and plan to leave 01/11/2018 - as my contract is for 1 months notice after my probationary period.

sangie595

In that case your notice period is, legally, one month. Of course, in the nature of things, that doesn't mean that's what the employer will pay, but you could go to tribunal if they attempt to pay less - the case you need is in my post #7.

God's teeth, we are usually extracting information from posters with pliers; and the time we get loads of information, it's actually obscuring the situation :-)

Ja7188

I am also not clear whether you have continuous service with the employer prior to this job, but on the matter of the probationary period, case law is clear. The employer is required to tell you before the end of your probationary period if you have not passed. They have failed to do so. Ergo, you have passed. The law does not accept any reasons for the employer to justify why they didn't, so "being busy with TUPE" or anything else won't change that.

So if an employee starts with a new employer on 1st January on a 6 month probationary period and a contract that states that their notice period is 1 week during their probationary period 1 month thereafter, and is then advised on (say) 5th July that they have failed their probationary period, the employer will be obliged to give them 1 month's notice and 1 month's salary...?

Personally I don't think I've ever had an end of probation review - after the period in question, I've just assumed I've passed!

sangie595

Ja7188 wrote: »

So if an employee starts with a new employer on 1st January on a 6 month probationary period and a contract that states that their notice period is 1 week during their probationary period 1 month thereafter, and is then advised on (say) 5th July that they have failed their probationary period, the employer will be obliged to give them 1 month's notice and 1 month's salary...?
Yes
Personally I don't think I've ever had an end of probation review - after the period in question, I've just assumed I've passed!

You and almost everyone else. That's the point!