AIBU? Escalating work issue to HR/legal advice

[WanOvaryKenobi]

Hello 👋,

Posted this in the Work chat but didn't get any response. Seeking a bit of advice here.

I started a new role 14 weeks ago that has a three month notice period. The contract wording is:

"Your probationary period is specified in section X (which says 3 months). Should either you or the company wish to terminate your employment during your probationary period, the notice required will be one week. Your probationary period may be extended at the direction of the company."

The notice period beyond probation is 3 months.

So this week my manager informed me that my probation was to be extended, 2 weeks after the 3 month probation period.

I have to be honest I was completely blindsided by this as I have a weekly 1-2-1 with this person and there has never been anything negative raised. Yet at my last meeting they announced that they still needed more time to decide, and in particular I needed to finish a strategy document, and a few issues with my "engagement" and "not being bubbly enough". Again, nothing along these lines has ever been raised in any of the 12 previous 1-2-1s.

As for the strategy document I was told to put it to the side for a few weeks to focus on bigger projects that had tight deadlines. I was never informed that passing my probation was contingent on completing this strategy document. In fact the opposite, I have been told that it is not a priority. If I had been informed of the consequences on my probation I would have worked a lot more extra hours. I'm also just shocked that there have been any issues with my performance or attitude as this has never come up before.

I now have a few questions as a one week notice period is extremely stressful.

I basically want to know if they are able to extend my probation period after the deadline has ended, and with no prior warnings or written confirmation. I have still not been asked to sign anything and some of the feedback, like being "bubbly" and "engaged" feel a bit like subjective measures to improve on rather than concrete achievements, and again these issues have never come up before. So it is not a clear performance improvement plan or official document and I don't want to be blindsided again.

I am also wondering if they do try to sack me if I am entitled to three months notice/pay. I have been looking at other cases and it does seem to me that they have to inform you before the probation period has ended if they are going to extend. Also, my contract does not say I need verbal or written confirmation when this period has passed so it feels like this is done automatically.

Any advice? Thanks.

It’s not great but given they didn’t confirm you’d passed your probation they can extend it and your shorter notice period still applies. You could kick up a fuss that none of these issues were raised and your probation outcome was late but unless there’s more to it eg discrimination there’s not a lot you can do. Look for another job if they are flakey which they seem to be

They might have a probation policy you could check - make sure they’ve followed that.

You’ve probably got a breach of contract claim but the monetary value will be tiny

This is quite useful. Check your contract and any policy but really at best you’ve got a breach of contract claim worth very little and might be better looking for a role with a better organised company

.https://www.davidsonmorris.com/extend-probation-period/

Do you want to stay? Then do what's being asked of you as best you can? If not start looking for something else.

Youve got very few legal rights and if things do go pear shaped the cost of suing for breach of contract will likely exceed anything you are due.

I have been looking at my contract and there is nothing about receiving a formal confirmation of passing, just that it is three months.

My manager has said a few... interesting things about my ethnicity. I also disclosed an ongoing mental health issue at the last meeting when I felt she was probing about me being "bubbly". Wasn't offered any help or support. Would that be enough for discrimination?

Since when has being 'bubbly' been a prerequisite for most jobs?

Been having a look and it doesn't say anything about specific procedures or milestones. Just that it is a three month period. The only thing that changes is the notice period, so I am wondering given I haven't signed anything am I entitled to three months or not? I'm a bit miffed with how this has been handled and wondering if I can get PILON. Should I go to ACAS or HR?

Well you’ve not been fired so not sure why they would give you PILON.

You could raise your unhappy and there was no prior agreement or discussion but I don’t think you are going to get overly far. What does you contract exactly say?

You might have something with the comments about your ethinicity and the fact this has come after you’ve disclosed a MH condition but if you want to keep the job I’d leave it and if you don’t of loon for something else. Wanting you to be “bubbly” sounds awful. I think I’d be moving on

Thanks for this! Two bits stuck out for me:

"This means that, as long as provision is made within the contract of employment to extend any trial period, this right can be exercised at a manager’s discretion. However, the right to extend probation periods must be clearly set out in writing prior to the start of this period."

Nothing set in writing as of yet, and conversation happened after the three month period was up.

Also this:

"Ideally, the probation period clause should also expressly state that the employee will not be deemed to have passed their probation unless they receive written confirmation to that effect — otherwise, this period may inadvertently lapse without any discretion to extend it. Where the contract of employment doesn’t make any express provision whatsoever to extend a probation period, the manager will need to seek the employee’s agreement to an extension."

There's nothing about written confirmation in my contract and the initial time period has passed.

I'm flabbergasted by it. At the very least I would have expected this to come up before?? It feels almost like a post hoc defence. Rather than address the fact I've been thrown in at the deep end during critical seasonal deadlines without them hiring a line manager so I've had little to no support.

Given you might want to leave as things don’t seem to be working out are you sure you want to push for a situation where you have to give them three months notice?

I'm very very torn about it. It's a great role in an area I am interested in and the money is good. I genuinely thought they were a good company but this has raised so many red flags for me. I guess I don't want to be in a situation where I could work my arse off again for the next two months (verbal agreement) only to get blindsided again.

I'm torn about it as there's a lot of things I like about the role and company. But I'm really unhappy with how this has been handled. I've also had no support from higher management when I've tried to put in processes in place and had several examples of this happening and had no response. I'm just worried I'll keep the heid for two months and then will be given a week's notice to clear off. Hence why I am wondering if they are still beholden to the contract I signed which doesn't say anything about needing written confirmation that I have passed probation.

'Bubbly' is one of these profoundly sexist terms like 'bossy', that are only ever applied to women. I would be deeply offended to be asked to be more bubbly (or told that I was too bossy) - how misogynistic! I don't know if you've got any comeback, though.

What ‘interesting’ things have they said about your ethnicity?

Happened to me recently.

You have a choice here. Either take a negative attitude and risk them being right to fire you - or take a positive attitude and get stuck in.

Being positive is a lot harder and you are Almost starting on the back foot- but you can make it work and make changes

However, it really depends on your situation, my own theory was a senior manager taking a dislike to me and quite honestly I wanted to prove her wrong (she was), she has since received multiple complaints about her attitude towards staff …. And yes I’m smug about it.

This sounds awful. I'd ask for clarification at a meeting.

The not getting probationary because of this document they'd asked you to sideline. Bubbly. MH admission. Ethnicity comments.

Full disclosure I am mixed race South Asian in Scotland. She asked me about an event I was going to with some former colleagues in community arts/heritage/women's shelters (previous career in another city). I talked a bit about the work I have done in ethnic minority group settings and she interrupted me to say "No wonder you have to go to X place for it because you aren't a minority here" referring to the fact we live in a city with a sizeable (yet still obviously minority) South Asian population. It just struck me as totally unnecessary and incredibly dismissive.

I know, of all the bloody things! Even stranger is apparently sometimes I'm "bubbly" and sometimes I'm not? Isn't that fecking everyone?

That's interesting. My DH thinks I should just keep my head down as there is a possibility this is just an oversight they are trying to get signed off (the document) and I run the risk of rocking the boat. Then if they do try to sack me see if I can get three months rather than a week due to how they have handled this. And if I pass I pass. It's the not knowing I find extremely stressful.

Do you think I should go to HR to ask what the craic is? Even on an informal basis?

No it's the opposite - if there is nothing in writing to say you haven't passed your probation before the end date then the probation period is deemed to have ended at that date.

This is the impression I was under. There's a case from 2007 that sets a precedent.

"Impact on employers
Depending on the terms of the employment contract, employees are likely to have increased notice rights (and perhaps the right to receive certain contractual benefits) after the probationary period has expired. Where an employee’s performance is unsatisfactory, the employer will need to extend the probationary period or dismiss the employee before the probationary period (or any extension) has ended. Otherwise, the employer is likely to have to give a longer period of notice to terminate their employment."

shepwedd.com/knowledge/extension-probationary-period-must-be-made-within-probationary-period