Employment probationary periods

aroominyork

My understanding is that if an employer does not terminate employment or extend a probationary period before the end of the probationary period, the employee is automatically deemed to be confirmed in post. Is this correct?

If it is correct, can it be overridden by an employment contract which says the employee is only confirmed in post when the employer confirms it? In other words, what is the position when the seventh month in post begins (six months probation) with this clause in the contract, if the employer has neither confirmed nor terminated employment (or extended the probationary period)?

elsien

Unless you get a pay rise for passing probation, it makes very little difference in practice. They can still get rid of you either way if they want to. 

For what it’s worth, I have been in my job for coming up for nine years and still haven’t been confirmed as passing my probation. I think they would have a hard job arguing that I have not been confirmed in post.

El_Torro

It depends what it says in your contract. If the company gets rid of you further down the line and they didn't make it clear that you did not pass your probation then it could be up to a court to decide whether that is a reasonable stance for them to take. Being in the job for 7 months will be viewed differently to 18 months, for example.

You probably know this already but to be clear: Your employer can terminate your contract whenever they like, until you have been employed with them for 2 years. After the 2 year mark you have more rights. Whether or not you are in your probationary period can still matter though. For example many employees get an extended notice period after their probation period has ended.

Undervalued

aroominyork said:

My understanding is that if an employer does not terminate employment or extend a probationary period before the end of the probationary period, the employee is automatically deemed to be confirmed in post. Is this correct?

If it is correct, can it be overridden by an employment contract which says the employee is only confirmed in post when the employer confirms it? In other words, what is the position when the seventh month in post begins (six months probation) with this clause in the contract, if the employer has neither confirmed nor terminated employment (or extended the probationary period)?

Broadly yes. However, as others have suggested, that doesn't really mean as much as your probably expect.

Probation has very little meaning in employment law. It is a contractual matter and if you "pass" then your are entitled to any contractual benefits that are set out in your contract, employee's handbook etc.

aroominyork

Without going into the detail of a complicated situation, my main interest is whether, as soon as the six months are up, the notice period would automatically become the 'post-probationary' length?

Undervalued

aroominyork said:

Without going into the detail of a complicated situation, my main interest is whether, as soon as the six months are up, the notice period would automatically become the 'post-probationary' length?

Yes, if that is the firm's normal terms and this employee's contract doesn't say otherwise.

aroominyork

That’s where it gets complicated and possibly contradictory. The contract says the first six months are probationary with a two weeks’ notice period, and after successful completion of the probationary period the notice period is three months. So what happens if the employer drags it heels after six months?

Undervalued

As indicated earlier, then normal legal interpretation is that probation is "passed" unless the employee is told otherwise (i.e. either failed or extended).

So if the six months are up and probation hasn't been failed or extended then the employee is entitled to three months notice if their services are no longer required (unless dismissed for gross misconduct).

If the employer fails to give that much notice, or pay in lieu, there would be a claim for wrongful dismissal (i.e. breach of contract). There is no two year qualifying period for such claims.

Whether this employee's contract wording would "trump" the normal legal interpretation, I couldn't be certain. Like everything the devil is in the detail but I would have thought it unlikely. I think there is case law to support this. You don't say why you are asking but with three months salary at stake I would suggest consulting a solicitor.

General_Grant

aroominyork said:

Without going into the detail of a complicated situation, my main interest is whether, as soon as the six months are up, the notice period would automatically become the 'post-probationary' length?

Are you asking about the notice to which you would be entitled to receive or the notice you would have to give to the employer?