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I read somewhere that if a "trial/probationary period is not confirmed when the time is up, it is deemed to have been successful" is this true, does it mean that they cannot later go back and put an employee on another trial period? Under a number of different names, my husband has actually worked for the same company for more than 9 years and was the first employee in a new field, initially employed as a fixed plant operator. He is 63 years old and a time served C& G full tech engineer. There have been difficulties in the past and paperwork has not always been properly kept up to date etc. by HR. Last October the company was re-configured. Because his job description had not been kept up to date and he had not commented when it mysteriously changed from engineer to technician, he was told he would be made redundant as the technician grade was being abolished.The change was cast aside as an administrative error. The job he was given as alternative to apply for was plant operator, talk about snakes and ladders! He pointed out that he should be given the chance to apply for an engineer's job. He was taken on after interview etc." Although he was given given some new directives and responsibilities immediately because they were in need. A letter dated 6th November 2014 says "it is fair to consider a 2-3 month period enough time for you to get up to speed". The promised updates and meetings amounted to one which was cut short and a few casual conversations. There was no negative feedback that he could act upon. In the new year he ended up having to ask if he should continue reporting for work and was told yes, and an official meeting would be arranged. Despite reminders this did not happen and eventually he had to email a reminder to his Managers and HR. The meeting eventually happened on Friday 27th March 2015. Because his 1st line manager has been working notice on the job and transferring to another position, he was not at the meeting. His 2nd line was and also 3rd line (a workaholic who can't let go of his old responsibilities) and HR. The upshot is they said he was not performing everything up to standard and would go on another 3 months trial! They had no prepared paperwork for him, perhaps he will get it today. He had been working at his old basic rates all this time, including a bonus for weekend working which actually ceased when he had time off for a hip replacement and broken leg. He has been fleeced on wages before and we had to make a stand and some, but not all of what was owing was eventually paid. We suspect this created a black mark against him. Although they say from April payroll this will be combined into his basic resulting in better overtime rates it has meant that all these months his overtime (51 hours one month) have been calculated on the lower rate and also his annual bonus. He work long hours in and unpleasant environment, does weekends and is on call out and it seems to me an expectation that he checks in with his I phone at 5 minute intervals!
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. So his employment was not terminated at any point and he has had no break of service with this employer?
sorry Ben I was out in town.
No he has not had any break in employment. The company name has changed over the years but employment has been seamless.
For Ben Jones
For Ben Jones - when you next be on line do you think?
since you are not online again I cannot rate your service as you have only asked me a question, not answered one.
by the way I am in the UK
Hello, sorry I was offline by the time you had replied and have only just returned. Also you can ignore any emails requesting a rating before I have answered your query – these are sent automatically.
Going back to your query, the relevant case in these circumstances is that of Przybylska v Modus Telecom Limited.
There, the employee Miss Przybylska, was employed on a 3 month probationary period, which could have been extended by the employer. During the probation her employment could be terminated with a week’s notice, with a longer period applying once the probation was completed. She was on holiday when her probationary period expired and the employer had not yet taken steps to extend her probationary period. A couple of weeks later she was dismissed with just a week’s notice, as required during her probationary period.
She complained of breach of contract and the decision was that she should have been paid 3 months notice, which would have applied after the completion of her probationary period. The Tribunal said that the assessment on whether to confirm the completion of her probation or extend it should have taken place during the probationary period and if it wanted to the employer should have extended the probationary period before it was due to expire. Therefore, if the employer has not taken steps to extend the probation before it expires, it would be assumed that it has been successfully completed and the terms that would apply following successful completion would be the valid ones.
However, that does not change much in his situation because his main employment rights are governed by his length of service. The main right being that he is protected against unfair dismissal once he has 2 years’ continuous service. It means that the employer cannot dismiss him unless they show there was a fair reason for doing so and followed a fair procedure. This is regardless of whether he was on probation or not. In any event, a probation is just an internal performance measure – if the terms and benefits during and after probation are the same then it does not make any difference in law whether he is kept on probation or not – his rights against dismissal are governed by his length of service.
I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you
Hi Ben, not really
I am aware that they cannot just dismiss him. In the first trial paperwork they said that should he not succeed they would continue with the redundancy process.
What is really important is the fact that the trial period came to an end and nothing happened. I read somewhere on line that this means he is "deemed to have fulfilled his probationary period".
What they have done is let the probationary period come to an end; leave it hanging for about 6 weeks and then start over.
The financial reward for the job is affected by the procedures. Yes, the next payroll will be at a better rate, but they have not back dated, nor (we suspect) aligned him to the rates paid to his co-workers, incidentally they were trained up on many of their duties by him as he has been there longest)
Hi I think the issue is you are confusing about what a probationary period actually means in law - it has no legal status, it is not something hat would give him any further rights once it has been passed. It does not mean that once a probationary period has been successfully passed, whether following confirmation or assumption, that the person gets permanent rights to the job in question and they cannot be removed. The passing of a probationary period means nothing in law - the person's rights are not determined by that. The only difference would be if by passing their probationary period the person becomes entitled to any better benefits in work, such as an increase in salary, more holidays, longer notice period, etc - that is what would matter if it is assumed that the probation has been completed; his general legal rights remain unchanged. So that is why you can rely on the case law I mentioned above if you were to argue that the probationary period has been passed and that he should be entitled to any better benefits having been confirmed in the job.
Does this clarify things a bit more?
Yes the legal situation is important to us. They have restarted probation (in writing) for a further three months from the end of March. By the time it ends at the end of June he will have been on probation 8 months! It seems unfair, they appear to be doing all he can to push him out, but at the same time are saying that his enthusiasm is not up to their requirements.
The work load is very heavy as they are understaffed, having previously taken on and engineer who was dismissed. One would think he could be more appreciated. The only concern seems to be that they move and process at optimum ALL of the time. Other staff are stressed and exhausted too. This is a business that gets paid for taking in waste and processing it, a win win business that has become so greedy. I will carry on keeping records. Do you think it may end in a tribunal ?
Ok going back to my initial response, probation is confirmed if it is not extended before the original expiration. But legally his rights do not change whether he is on probation or not – the only things that matter are if he gets better terms after probation, such as longer notice, etc and these will be defined in his contract – it should say what he gets after successful completion of probation. If there are no better terms applicable after probation then there is no change to his status, whether he is classified on being on probation or not. This will only end up in tribunal if he resigns as a result of this but would need to show they have not adhered to contractual terms that apply after probation, or they dismiss him.
I don't think he has actually been issued with a new contact. Sorry to have missed you on live.
ok so in that case his rights do not change - the probation is just an internal matter, it does not give him any lesser legal rights to keep his job for example
Ok Ben, I will be discussing this stuff with him laterif he manages to stay awake. They are still pushing very hard. He started work about 6am this morning and was home at 5.20pm and then spent another 10 plus minutes dealing with work on the I phone, such a long day. The 3rd line manager was supposed to be on holiday since the start of last week, but continues to bombard him for constant updates. A problem came up as he was about to eat, he left it to fix it and got back 2 hours later. Happy Days!!
I certainly empathise with the situation but these factors will not impact on his legal position in terms of the probationary issue. Happy to discuss anything else if needed?
Is it looking as if it could become constructive dismissal do you think?
that would be difficult to prove, especially for the probation which is not a major legal issue as it does not change his rights. You have to remember that constructive dismissal is one of the most difficult claims to win.
An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against him.
Thanks for that Ben. He went back into work at 10pm last night, he didn't want to , but I warned him he was effectively asking for the sack if he didn't go. I haven't seen or heard from him since.
He should finish about 1pm today. They initially asked for 4pm, but he said that he understood keeping the weighbridge open past 1 on a saturday was in contravension of the licence to operate. Also he will have worked on each of the last 24 days.
By the way, I have a query out with customer services as I seem to have got "pay by question" and also a trial subscription deal and need to get that clarified.
ok unfortunately I have no dealings with the subscription/membership parts so they need to deal with this
but this conversation is 'one question'
Just wanted you to know I was not trying to escape without paying you for your advice!
hah not at all! Whenever you are ready all you have to do is select a happy face
Will do, but I want husband to be able to look at your advice before I sign you off.
of course, no rush
thanks, ***** ***** now