Employment Law Advice

Todds_right_hook

Does anyone have any knowledge on employment law?

I started a new job last year with a 6 month probation period. During the probation period I am on one weeks’ notice but 3 months upon completion of the probation period
I had a three month review meeting and signed the document/set goals for the next few months etc. I did not have a 6 month review meeting. A new director started, we don’t get on so I have handed in my notice.
I believe that I am still on probation due to the following: -
1. The three month review stated that I would have a more detailed review with the new director at the 6 months stage. This did not happen and I have not formally met with a director.
2. I have not been given the opportunity to discuss my role and any positive or negative aspects since the last review
3. I have not signed a six month review form. This is standard within the Department as I have attended 6 month reviews and signed the forms for other people within the team
4. I have not been offered any of the benefits which are offered upon completion of the probation period
I believe that I am still on probation and can leave in a week (handed in my notice 3 weeks ago so technically I can walk) but keep receiving a response from my director stating that my notice period is 3 months but he isn’t giving an explanation.

I have a meeting with him tomorrow and would appreciate any comments/advice

Henry Irving

Stick to your stance.

They haven't followed their procedure so are in breach. This would go against them in any employment tribunal (if it got that far which is unlikely as you've not be in the job very long)

However, they may argue that by continuing to work and take pay after the six months you have accepted the terms of employment.

You can counter this by saying that you didn't gain the benefits you would have been entitled to after completing probation. But this is the area that intrigues me. If there is a pay rise or other benefits why did you not ask for them at the end of six months? How substantial are these benefits? Why were you not given them?

In any case it would be very hard for them to force you to work for three months. The other side is that they may not give you a reference or at least not a positive one.

As ever have to say can't give a full response without all the info.

All_Thaid_Up

Not a legal expert, but if you have completed more than six months and have not been told your probation would be extend then technically you are fully employed with all the benefits that would entail such as 3mths notice.

killerandflash

In practice few employers will force an unhappy employee to serve out their full 3 months notice. Once they've gone though the formal legal process, if they "win" the argument, I'm sure they'll come to a compromise with you

Lincsaddick

You have completed six months and are therefore no longer 'on probation' .. also, you were not told that the probation would not be extended and therefore by implication/default moved from being a probationer to a 'permanenter' (if there be such a beast) .. therefore, three months notice is required.

However, if you have another job lined up, just go, they can't clap you in irons only give the information in a reference that you quit without fulfilling the required notice period .. otherwise, if you don't have another job, you can turn up for work and pick up a few grand in salary while you look around .. that's how I see it ..

AFKABartram

I've just put you on a final warning for posting in the wrong category

Todds_right_hook

AFKABartram said:

I've just put you on a final warning for posting in the wrong category

More people read this one

Heath Hero

Have a look at the probationary period clause in your contract. Does it say that you will be notified if you have completed your probation or notified if you have failed? The lack of any communication means you can argue the opposite if it suits you to do so.

PL54

All_Thaid_Up said:

Not a legal expert, but if you have completed more than six months and have not been told your probation would be extend then technically you are fully employed with all the benefits that would entail such as 3mths notice.

Not sure that's true but not 100 %.

The employee generally has very little to rely on for the first year, probation period or not.

Also, if the previous manager has left I'd guess little has been documented.

bobmunro

Probation has no legal meaning in employment law - it is just an internal construct whereby some contractual terms and conditions may be different for a set period of time - e.g. the disciplinary procedure may be non-contractual for x weeks or, as in this case, the notice periods either way are different. The reality is that every job carries a two years less a week probation as you do not acquire employment rights (the right for example to claim unfair dismissal) until you have two years service (unless the dismissal was for reason of discrimination against a protected characteristic, and a few others scenario's in which case no minimum service requirements apply).

Based on what you say it may or may not be successfully argued that your notice changed to three months after you had served six months with the company. But to all intents and purposes it is meaningless - slavery was abolished in 1833 and they can't physically force you to work 3 months notice. Although technically you would possibly be in breach of contract if you leave before then the recourse the company have is to sue you for consequential damages - i.e. the loss the company suffered by you not working your full notice and they would have to quantify that loss. Trust me, they won't bother!!

Worst case scenario is, as already mentioned, that any reference they may provide to your future employer(s) could state 'failed to work contractual notice'. If you explain the situation to any future employer then this would have little or no detrimental impact on you.

PL54

It's not slavery is it ?

Notice period is paid for.

bobmunro

PL54 said:

It's not slavery is it ?

Notice period is paid for.

But he doesn't want to work it - i.e. they can't physically force him to.

Slavery isn't defined by unpaid work - it is defined by servitude, no choice, enslaved.

aliwibble

Are you a member of a union? They're usually very helpful where employment law is concerned. Failing that, phone ACAS for advice.

bobmunro

aliwibble said:

Are you a member of a union? They're usually very helpful where employment law is concerned. Failing that, phone ACAS for advice.

No need for unions or ACAS (the latter being about as much use as a two bob watch). I generally talk a load of bolloxs but on this, the advice I gave earlier is sound - trust me, I'm a Doct.. Human Resources Director.

PL54

bobmunro said:

PL54 said:

It's not slavery is it ?

Notice period is paid for.

But he doesn't want to work it - i.e. they can't physically force him to.

Slavery isn't defined by unpaid work - it is defined by servitude, no choice, enslaved.

He might not have wanted to work Monday mornings either (or any other scenario's (sic)) but he was assumedly contracted to do so and got paid for doing so.

A bit odd that an HR Director advises to just walk out and explain the reference issue at a later date.

In fairness though, I actually don't care.

MrOneLung

Surely you generally get told you have passed probation ?

bobmunro

PL54 said:

bobmunro said:

PL54 said:

It's not slavery is it ?

Notice period is paid for.

But he doesn't want to work it - i.e. they can't physically force him to.

Slavery isn't defined by unpaid work - it is defined by servitude, no choice, enslaved.

He might not have wanted to work Monday mornings either (or any other scenario's (sic)) but he was assumedly contracted to do so and got paid for doing so.

A bit odd that an HR Director advises to just walk out and explain the reference issue at a later date.

In fairness though, I actually don't care.

I posted in my capacity as a fellow Charlton supporter rather than as his HR Director.

You really could start an argument in an empty room.

Todds_right_hook

Thank @bobmunro. I had a formal 3 month review with the previous director where objectives were listed for discussion at the 6 month review. The 6 month review meeting was booked and cancelled by the new director who also confirmed that we would meet once the holiday period was over. Therefore, there was intent to meet so the letter I was received confirming the probation period is over is premature? If an employee raised this issue with you, what would your answer be?

bobmunro

Todds_right_hook said:

Thank @bobmunro. I had a formal 3 month review with the previous director where objectives were listed for discussion at the 6 month review. The 6 month review meeting was booked and cancelled by the new director who also confirmed that we would meet once the holiday period was over. Therefore, there was intent to meet so the letter I was received confirming the probation period is over is premature? If an employee raised this issue with you, what would your answer be?

It will entirely depend on what your contract says. For example if it says something like;

Your employment is subject to a six month probation period during which time the notice required to be given by both parties to terminate the contract is one week. Thereafter the notice required to be given by both parties is 13 weeks.

Then if you have more than six months service the longer notice period would apply.

However, if the following was added:

Your probation period may be extended beyond the six month period and will only be considered completed successfully when you have been formally advised as such.

Here you would still be on one week notice assuming you hadn't been advised that it had been completed.

se9addick

Don't underestimate how important it can be to get a reference later on.

Swisdom

For me it would depend on the seniority of your role.
If you've resigned and want to go I'd let you go rather than pay you 3 months garden leave or for 3 months to potentially be unproductive or an irritation to others

IA

se9addick said:

Don't underestimate how important it can be to get a reference later on.

I'm not convinced it's worth spending an extra three months working in a place you don't like. Especially considering that such a place is unlikely to give you a good reference anyway.

Todds_right_hook

Reference is not an issue. I worked for my previous employer for 15 years and will always go to them, the director that left will also provide a reference. My new employer is fully aware of the situation

Todds_right_hook

Thanks @bobmunro. I handed my notice in a day before receiving the letter informing me of the successful completion of the probation period. Does this change things

bobmunro

Todds_right_hook said:

Thanks @bobmunro. I handed my notice in a day before receiving the letter informing me of the successful completion of the probation period. Does this change things

The chronology is in your favour

Heath Hero

Todds_right_hook said:

Thanks @bobmunro. I handed my notice in a day before receiving the letter informing me of the successful completion of the probation period. Does this change things

At the time you gave your notice you were only required to give one week's notice which you have done so there is no need for you to hang round a minute longer and it does not appear you will be in breach of contract by walking (not that they are likely to do anything anyway even if you were).

lolwray

this quickly turning into an "ask Bob for employment advice thread" ...id start charging though Bob ,you dont have to answer Bob but if someone in your employ didnt serve their contractual notice period and did as you advise would you just cave in and let it pass ? I assume different industries would look at things differently

bobmunro

lolwray said:

this quickly turning into an "ask Bob for employment advice thread" ...id start charging though Bob ,you dont have to answer Bob but if someone in your employ didnt serve their contractual notice period and did as you advise would you just cave in and let it pass ? I assume different industries would look at things differently

Happy to answer.

If the employee resigning had a long notice period to serve but didn't want to then I would start with 'you are contractually obliged' and probably end with a negotiated half-way house. I certainly wouldn't consider taking legal action unless in very specific circumstances.

I'm also happy to provide employment law advice to any Lifer on a pro bono basis

IA

bobmunro said:

I'm also happy to provide employment law advice to any Lifer on a pro bono basis

What if Bono is my employer?

bobmunro

IA said:

bobmunro said:

I'm also happy to provide employment law advice to any Lifer on a pro bono basis

What if Bono is my employer?

I'd advise getting another job!

StigThundercock

If you have a job lined up I wouldn't worry too much.
Even if your current employer sticks to the 3 month notice requirement they can't force you to come to work. To get any months pay back from you they'd have to sue and what are the chances of that?
Clarify with your future employer what sort of reference they need and explain your current situation. Ex-employers usually run shy of giving bad references because it's easy for you to prove defamation. If they haven't raised any disciplinary issues with you, there can be very little to worry about.
Generally it is very difficult for employers to enforce longer than 1 calendar month's notice, employment law is stacked heavily in favour of employees. Any legal dispute over contracts can only seek to restore parties to where they were without the contract i.e. you not working for them anymore.