Probation review 2 months overdue. Q re: rights to reject probation & missed benefits

LegacyUser

Hello

I've been working for over 7 months in a job that I'm very unhappy in. I'm actively looking for a job and will hand in my notice as soon as I find the right position, hopefully within the next 6 weeks.

The contract I signed said I'd have my probation review at 6 months at which point I'd be entitled to health insurance and pension contributions.

The probation review should have taken place 5 weeks ago. I never mentioned this to my employer as my notice period increases from 1 month to 3 months upon successful completion of probation. A 3 month notice period wouldn't benefit me in my current circumstances as it hinders my job search.

If I'm to be honest I'm not sure if my boss will extend or sign off my probation.

My question is, when I finally have the probation review if my employer tells me I have passed, do I have the right to reject it or am I effectively tied to giving them three months notice just by my employer saying I passed probation or do both parties need to agree to it for it to become effective?

Also, if I were to pass probation would I have any claim to be compensated for the two months of missed pension and health insurance contributions which I'll have missed out upon as a permanent employee - due to the late probation review?

Thanks

BattleCorp

I have to preface this by saying I am not a legal/HR professional so I could be talking out of my hole.

My view is that your probation period can only be extened if it hasn't elapsed.

In other words, it could be extended after four months because of poor performance etc. but not after the six months has elapsed. I think that once you have done 6 months and a day, your probation is deemed to have been passed unless there are extenuating circumstances why it wasn't extended (hr office burned down the night before they were going to extend it).

And it would be very unfair on an employee to say to them after seven months that they were going to extend the probation if there wasn't some sort of documented discussions about poor performance etc. during the six months. Have the company hinted to you that they were going to extend your probation at all during the 6 months?

My advice is to keep working away and looking for a new job at the same time. When it comes time to leave, give one months notice and take up the new job. In reality there is feckall that the employer can do if you leave after a month instead of three months.

I'd leave it another month until you mention probation (if you are still there) and then ask HR/Payroll why haven't the pension/health insurance contributions been made - seeing as you are entitled to have them made now. I'm guessing HR/Payroll will have some explaining to do.

Regarding looking for compensation, if you are moving on, I wouldn't bother.

Johnny Sausage

If you've less than 2 years service you probably can't take the employer contributions with you anyways unless there's immediate vesting in the scheme rules, they can backdate employer contributions but may insist you do same

Your health insurance contributions are not a monetary amount paid to you, at best they can try backdate the cover to the effective date

Doop

AS mentioned above there is little they can do to enforce the 3 months and you can also state you thought you were still on probation and one month was all that was required if they argue it just say look I've committed to starting in the new company in one moths time so....

With regards to the pension, generally speaking it is often has a term included that if an employee leaves within two years they forgo the employers contributions. I really dont think it would be worth the hassle to argues for the health contributions and I would doubt you would be compensated in any way. Really not worth the bother if you are going to leave either way.

OMM 0000

You've passed your probation. Your first 6 months were probation and you're now in month 7.

Ohmeha

In line with the above I'm pretty certain you have to receive it in writing from employer before your probation/contract etc. expires if they are going to extend your probation otherwise you've passed your probation and are permanent

Have a read over the below

https://www.citizensinformation.ie/en/employment/employment_rights_and_conditions/contracts_of_employment/fixed_term_or_specified_purpose_contracts.html

Mrs OBumble

Ohmeha wrote: »

In line with the above I'm pretty certain you have to receive it in writing from employer before your probation/contract etc. expires if they are going to extend your probation otherwise you've passed your probation and are permanent

Have a read over the below

https://www.citizensinformation.ie/en/employment/employment_rights_and_conditions/contracts_of_employment/fixed_term_or_specified_purpose_contracts.html

Legally correct.

But in practice, just resign with a months notice. Three is crazy.

skallywag

As others have mentioned, once the probation period is over, then you passed. This does not need to be acknowledged in any way by your employer. They only need to intervene if either you have not passed (and are being let go) or if they was to extend it.

Strumms

The professional thing to do by your employer would be on completion of your probation to invite you to a meeting, discuss your time there, their observations of your strengths, weaknesses and take any questions you have and most importantly inform you of whether you have passed the probation. To have you lingering on not knowing is pretty crap. I’d be wary of them, but seek clarification firstly if you’ve passed and secondly mark their card by means of “why wasn’t i told, why did I need to seek to find if I’d passed probation.”

BattleCorp

Strumms wrote: »

The professional thing to do by your employer would be on completion of your probation to invite you to a meeting, discuss your time there, their observations of your strengths, weaknesses and take any questions you have and most importantly inform you of whether you have passed the probation. To have you lingering on not knowing is pretty crap. I’d be wary of them, but seek clarification firstly if you’ve passed and secondly mark their card by means of “why wasn’t i told, why did I need to seek to find if I’d passed probation.”

It works the other way around. No news is good news. It is assumed you have passed the probation if you hear nothing. And given that the probation period expired almost 2 months ago, it would be an abuse of process to extend it now after giving the employee no hint that it was going to be extended.

Strumms

I don’t see no news, not knowing and being unsure of your actual employment status following a probation period as good news...

The proper professional course of action would have been that the employer on the expiration of the probation period invited the OP to the meeting and spoke to them as to how it went, their observations on what they are doing well and areas where there may be room for improvement... obviously as to whether they passed the probation being the most important information.

Communication is very important in the workplace and if you are looking at a situation where after probation you just presume that you are ‘ok’ rather than being told.

We need to stop making excuses for pîss poor management like this... if the OP didn’t show up for work tomorrow, no call, would it be ok to ‘presume’ that they must have just been ill... ?

Takes two minutes to call you in... “ congrats, you have passed your probation, very happy with x,y,z keep it up, though try and do ‘a’ better please” etc etc...

BattleCorp

Strumms wrote: »

I don’t see no news, not knowing and being unsure of your actual employment status following a probation period as good news...

Maybe it's an impolite system but your employer only has to tell you that you didn't pass your probation or that your probation is being extended, they don't have to tell you that you passed it. I do agree with you somewhat that it might make someone unsure of their employment status if they were unsure about the rules surrounding the probation period.

The proper professional course of action would have been that the employer on the expiration of the probation period invited the OP to the meeting and spoke to them as to how it went,

Agreed, it would be best to write to the employee and inform them that they were successful in their probation, but that's a nicety, not a legal requirement.

We need to stop making excuses for pîss poor management like this... if the OP didn’t show up for work tomorrow, no call, would it be ok to ‘presume’ that they must have just been ill... ?

Takes two minutes to call you in... “ congrats, you have passed your probation, very happy with x,y,z keep it up, though try and do ‘a’ better please” etc etc...

Bit strong calling it p1ss poor management for not telling someone that they passed their probation. It's not a necessity and in the OP's case, it is not a demotivational factor as the OP doesn't like their job eitherways and would be delighted to not pass their probation.

What is p1ss poor is not giving the OP their pension and medical employment perks when they were due to kick in after 6 months. That said, mistakes do happen. I was omitted from our work pension scheme for almost a year before the mistake was noticed (and then rectified). The OP should inform the HR department that they are entitled to these perks now.

Your example above regarding the employee not turning up is not quite the same thing. The employee not turning up affects the business. The employee not being told they passed their probation doesn't affect the business. The work still gets done and the worker still gets paid and still has their permanent job.

Strumms

An employee who is given a definite period of probation needs to be called in and informed if they have passed it, needs to be informed that they do or don’t have a permanent job, end of. It’s not good enough simply to forget, overlook etc. the responsibility and onus is on the employer... to communicate this vital information, it’s definitely pîss poor not to.

If I’m a new employee and after my shift tonight which say finishes at 21.00 my probation ends, I expect to be informed during this shift or the next one, if I have passed or not and what my employment status is. It’s an expected professional courtesy and failure to give this feedback in a similar timely manner IS piss poor management.

If the employee hasn’t been successful, sit down with them for 15 minutes and tell them why. If they have been successful advise how this impacts their career and the subsequent steps.. contract etc...

BattleCorp

Strumms wrote: »

An employee who is given a definite period of probation needs to be called in and informed if they have passed it, needs to be informed that they do or don’t have a permanent job, end of.

While good manners, I am 100% confident that this isn't legally necessary. If your probation hasn't been extended, it is deemed passed once the probationary period has elapsed.

If the employee hasn’t been successful, sit down with them for 15 minutes and tell them why.

Doing what you say in the above paragraph will land the company in trouble. You can't 'blindside' an employee by telling them that they failed their probation after the probationary period has elapsed.............unless you have flagged to them at an earlier time(s) that they needed to improve certain things or else they mightn't pass their probation.

The OP gave no indication that this happened in their case.

Strumms

BattleCorp wrote: »

While good manners, I am 100% confident that this isn't legally necessary. If your probation hasn't been extended, it is deemed passed once the probationary period has elapsed.



.

It’s not a case of good manners, it’s a case of a professional courtesy towards the person working the probationary period. They are giving ALL to become permanent, calling them into an office for 30 minutes at the end of their probation is the expected, professional done thing, or should be and in a timely manner.

If we are to judge people in the workplace via what we deem to be ‘legally necessary’... if my employer contacts me and asks me to come in and work an extra shift on a Friday and I just said... “no won’t be doing that, sorry” they would have a right to be a little pissed off. Fûck all they would be entitled to do but understandably pîssed off... On the other hand if my reply is.. “ohhh I’m actually taking a 11am flight to Edinburgh to spend the weekend there with the other half”... that’s a courtesy that needs to be a two way thing...

mrslancaster

Can anyone explain how probation periods work if a new employee goes on maternity leave during the 6 month probation? Does the employer keep the job open until they come back from maternity leave and then the probation period continues?

skallywag

I would imagine in such a case that the probation period gets extended by the same length, after agreement between both parties?

E.g. assume the probation period is 6 months, and mat leave begins after 3 months of employment. The probation period is then finished once the employee is back at work for 3 months. Just my own logical take on it, I'm not certain by any means.

That said, keep in mind that you can be normally be let go for any reason during the probation period, without question. If the employee in our example was immediately sacked after she announced her mat leave, then I am not sure if she would have any grounds for unfair dismissal or not. That's an interesting one.

mrslancaster

Yes I agree it is an interesting one. I think UD applies immediately for pregnancy so looks like an employer must allow the maternity leave. AFAIK its 26 weeks and then an extra 16 weeks unpaid leave so 10.5 months could bring the 'on probation' person to over 12 months in employment. After 12 months, UD kicks in so a 6 months probation period is well passed. How do employers deal with this?

skallywag

mrslancaster wrote: »

After 12 months, UD kicks in so a 6 months probation period is well passed.

I am not sure whether maternity leave counts towards 'continuous employment time' , for want of a better word, or not.

I guess the same could be said of a long period of sick leave, e.g. say someone goes out sick for 6 months, is this then counted towards 'continuous employment time' ?

My gut feeling would be no.

As to whether Unfair Dismissal can be claimed while pregnant during probation, this has been discussed a few times before here, without any real definitive conclusion. As I recall the majority consensus was that you can still be let go with a general 'sorry, it is not working out', although I think that one poster had a link to a case where a lady won a case in such a circumstance.