Probationary period, unlawful extension and maternity leave

[jonnyk]

Hi,

 

I'm writing on behalf of my partner and will be grateful for any advice received.

 

She began work on 23 Febraury 2015, with a 6 month probationary period. This would then expire on 22 August. On 24 August she had a end of probationary period review where the probationary period was extended by 3 months, due to her falling short of sales targets (although there was an upwards trend).

 

A couple of points here: a) My understanding is that the probationary period is passed by default if not reviewed before it expires, and b) there is no mention of provision to extend the probationary period in this time in her contract. Is this a lawful extension of the probationary period?

 

This brings us to now, when the 3 month probationary review is due to tomorrow, 26 November. Again, even if the clock was to start ticking from the review in August, the probationary period would have expired on 23 November, so is now again passed by default?

 

As a side plot, she has since fallen pregnant and informed work as soon as this was confirmed by the GP. This was approximately two weeks ago. Since this was discussed with her employer, the immediate response was 'we better bring your probationary period forward ', and a pipeline of work recently planned for her into the new year has been withdrawn.

 

I am naturally concerned that her employer is considering letting her go within their interprsatation of the probationary period and I'm considering the options should this happen. I think there are a couple of things to go at - probationary period reviews after the probationary period has finished X 2, and in the worst case scenario, unlawful dismissal on the grounds of discrimination, given the change in behaviour after pregnancy was declared.

 

Should we inform her employer that she has already passed her probationary period by default prior to her review tomorrow, and maybe influence her employer's views on what they can or can't do? Or wait to see what happens, and be prepared to fight if necessary?

 

Any advice greatly appreciated.

 

jK

[ericsbrother]

Probationary periods are just an administrative convenience and mean nothing when it comes to employemnt law. It should really be a period of training etc where the employee is given time to settle into the role and the employer ensures they receive the support and feedback necessary to attain the level of competence to do the job properly. This then qualifies the person for H&S purposes as having the correct education training and experience to do the job properly. Extending the probationaly period would really be saying that one of these 3 parts was soemhow not up to the mark and the futher training or whatever will correct this or there will be a parting of the ways.

Now, if the company dismisses her there is a fair chance that the pregnancy will be viewed by someone as the underlying reason so I dont think it was wise to inform them at this juncture but what is done is done. Did the change of the scheduled work happen immediately after this revelation and if so how long was that job expected to last? If an employer wasnt going to keep someone on after an unsatisfactory probation period they wouldnt give them a task that was going to be needing forward planning so it does loo like they have made their minds up based on the pregnancy rather than the probation.

Any feedback about her progress over the last 9 months would be useful to help your claim. When I was a lad I had to keep a training diary and had formal progress meetings during my probationary period and that was 6 months of a 3 year training schedule. After that it was discussed on an annual basis but my trainers had to report on me in 6 monthy intervals. this amde for good records so the same stunt could never be pulled.

[jonnyk]

Hi, thanks for the feedback.

 

It is a sales role and the probationary period was extended due to targets not being met. Since the probationary period was extended, her sales results have continued improving - one month target was beaten considerably, the other two months targets were not hit but there was still improvement vs her previous performance. It is not unusual for sales targets to be missed across their work force.

 

The recent time line was - we were on holiday in early November. During our break, her colleagues were informed of a new stream of work to be handed over to her responsibility. This is ongoing, indefinite business with no end date.

 

The other half informed work of her pregnancy a few days later. The immediate response to this was that her probationary meeting would be brought forward (pregnancy should be irrelevant here so why the need to bring forward??), and when she inquired about the work that was to passed to her, there then seemed to be a lot of uncertainty over whether this was actually going to happen. This is all within the last week or so.

 

Contractually her probationary period finished on 22 August. It was then extended, which contractually they were unable to do, until 22 November. This has again expired. An extract from her letter dated 23 November, is shown below:

"On 24th August your probation was extended for 3 months. This period has nowcome to an end and we would like you to attend a probation review meeting to beheld on 26th November 2015,

During the meeting, we will discuss your performance to date against the setcriteria for your role. You should bring to the meeting any records ofperformance you have relating to your 9 months in the business.

This is a formal meeting and one of the outcomes from the meeting could bethe non-confirmation of your probation period and the termination of youremployment with the Company."

I wonder whether the company should be informed that contractually the probationary period has already finished, and the time has elapsed for the probationary period to be reviewed in this way?

 

If she is let go, I think we have clear evidence of unlawful dismissal on the grounds of discrimination and also breach of contract, but then she would be unable to get another job that entitled statutory maternity leave because she is already pregnant.

[ericsbrother]

If she is dismissed it would be a matter for the employment tribunal rather than a choice of which track to use so get some advice from an employment lawyer pronto of you can, many do an initail consultation for free or a nominal amount. I agree with you that it does appear that the company has changed its attitude greatly and done a bit of maneouvering since her news was broken to them. The probation is a bit of a red herring as far as employment law goes but the letter does make it clear probation HAS ended so cannot be used as an excuse. the company would have to show that it treated every other putative employee the same way when they had the same sales figures. If there is a difference then they will have to explain why they have decided not to employ her when employing others in the same boat. Dismissal due to pregnancy is unfair dismissal so saying we sacked her because she wasnt up to the mark will require proof that ALL others were dismissed at this point if they failed to meet a certain benchmark and I bet that wasnt strictly true but it would be telling to see who the exceptions were.

[Ell-enn]

You may find you have free legal cover with your house insurance - if so give them a call and ask to speak to their legal advice department, they should assign you a solicitor.

[jonnyk]

Great feedback - thanks, I think we do have free legal advice through the bank or house insurance. Meeting day tomorrow so will see how it goes...

[jonnyk]

My partner had her review meeting today, and they have now extended the probationary period by a further two months. Is this on? It will be a total of 11 month's probation when the contract states 6 months with no mention of a provision to extend.

 

As mentioned previously, on two occasions her probation period has been completed, and twice the company have attempted to degrade her status to probationary, despite the probationary period having been passed by default.

 

Her treatment to me seems completely unreasonable and causing much undue stress. She will be 4-5 months pregnant by the end of January review and we both want to live without this uncertainty over her future employment status.

[Ganymede]

Ericsbrother has already advised you twice that the probationary period is a red herring and meaningless when it comes to employment law.

[ericsbrother]

is there a financail disadvantage to this such as a lower or zero bonus paid to probationers? Again you would need to look at how others are or were treated and that information may not be easy to obtain if the company get a whiff of why the question is being asked.

[san_d]

She will have no access to employment tribunal unless she's been employed for 24 months. The current govt will probably scrap this and give employers the right to sack at any time.

[becky2585]

She will have no access to employment tribunal unless she's been employed for 24 months. The current govt will probably scrap this and give employers the right to sack at any time.

 

Not if if she can demonstrate it was linked to her pregnancy.

 

It was the current government that actually put the qualifying period up for unfair dismissal claims (and introduced tribunal fees). The conservatives are very much trying to support small businesses and deter claims, but I can't see unfair dismissal rights being abolished altogether.