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.

I think I'd be cutting my losses and looking for a new job,, too many red flags to be wasting anymore time there

I missed the date of an employees end of probation period and wanted to extend it but HR said I couldn’t and the automatically pass if you go past the end date.

It's so frustrating as I just want to get my feet under the table and do what I have been hired to do.

That is very interesting. What happened? I wonder if my higher up has gone to HR. Is it worth speaking to them?

1. I’d leave anywhere where my contribution was not valued and they could not give any reason for their low opinion of me
2. They can’t extend your probation after the expiry date.
3. Quote the case law and say you don’t agree to them extending your probation.
4. If they dismiss you try to get 3 months notice but if you don’t I’d let it go. The cost, time, expense of an employment tribunal will far outweigh 2 months and 3 weeks wages.

This is fantastic thank you. The three month wages would be about £7,500.

“The EAT, in Przybylska v Modus Telecom Ltd, has found that an employer cannot imply a contractual term to extend a probationary period in order to carry out a performance review.
It was held that the employer was only allowed to extend the probationary period if it informed the employee of the extension during the probationary period, even if circumstances made it impractical to carry out a performance review before the end of the probationary period.
Facts
The employee was dismissed after failing her probationary period but was not informed of the decision until three weeks after the probationary period had ended. She was, therefore, entitled to three months notice rather than the one week that would have applied if she had been informed of the decision within the probationary period.”

Never, in over 20 years of working in employment law have I ever known a company to successfully have been able to extend a persons probation after the expiry date if they had not informed them before the end of it .
However, it is going to be difficult to make a case for anything until you have suffered detrimentally. For example, if you did not get a higher rate of pay because your probation wasn’t passed or you were dismissed and paid the wrong amount of notice. To pursue this, even then, takes time and money.

I would speak to HR and potentially put in a grievance if you want to stay there.

Thank you so much for this. I have one question though, which is if I want to stay will putting in a grievance to HR not be detrimental?

Legally they can’t dismiss you without clear reason and they should always make sure your targets can be measured, so they can’t just say you need to be more bubbly. However, you do have different rights when you’re in a probationary period when it comes to employment tribunals so you are unable to claim unfair dismissal however you can claim wrongful dismissal.
they can legally dismiss you with a weeks notice or immediately depending on circumstances.

It seems like I am automatically through the probation period as there is nothing in my contract about verbal or written confirmation, just the length of time. Never had any official warnings or anything so will keep this in mind if they try to sack me.

@WanOvaryKenobi 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.

You're mis-reading this. It's saying that they are allowed to extend the probation period if they say they can, in writing, in advance - which you said in the first post was in your contract. So they have the right.

But to exercise that right they have to give notice of intention to extend before the standard probation period expires. Which it seems like they didn't. So you should be on 3 months notice automatically, because they have screwed up.

How important is the strategy document for them? Clearly if they try to give you one week's notice then you aren't going to feel inclined to do/finish it. Or are they extending the notice period in order to enable you to complete it before they let you go? I don't think that's a plausible reason to extend probation, there has to be real concern about your suitability for the job.

Can you contact ACAS, or is there a union rep?

I think I’m missing something obvious. Assuming you want to leave surely you’d prefer one week’s notice.

There is no need for the employer to make a PILON - they can just require you to work the full 3 months even if they decide to terminate you.

Ah thank you.

They verbally suggested a two month extension to finish the strategy document then implement it. There hasn't been any negative feedback about my output, attitude, or skills until this meeting after the probation period ended. Which I'm quite surprised about to say the least. There was a suggestion that it would then "give them more time to see" about my performance which I do sort of understand but I was also told to discard the document in favour of working on bigger campaigns with tight deadlines. They never mentioned the document needed to be completed before the probation period ended. I also feel like if they didn't like me for whatever reason they would have let me go by now/I would have received negative feedback already. I'm genuinely baffled. Never had this happen before.

Thanks.

I would rather have the security of three months notice or pay than one week so I wanted to know where I stand if they try to formally extend/give me a week's notice in 8 weeks.

Reading between the lines, is is possible they just wanted you in for this busy period and to complete specific pieces of work? And now they will try to implement processes to get you out the door as cheaply as possible....

Seems they are a bit shady and if it isn't deliberate, it's incompetent.

This has occurred to me...

What I’ve read doesn’t sound too bad tbh

I’m presuming the document thing you need to finish to complete your probation wasn’t to a timeline
not what you want to hear but from a business point of view it makes sense for you to finish time critical work extend your probation to let you finish the documents they want to assess you on
the comments she made referring to you minority I think were related to your pervious job not your personal heritage

Yes you must speak to HR. Ask for a meeting to talk through the situation and that you haven't had negative feedback, worked under direction and now after your probation period has ended you're being told it's being extended

Then it's their problem to resolve the situation and come back to you. If they don't satisfy you then you can remind them of case law etc.

Every chance the manager hasn't discussed with HR at all ...

Oh any any extension Should be confirmed to you in writing because it's a change to your contracted terms.

Just remember HR are employed by the company, so they will work in the companies favour rather than yours. Only saying this as I put myself in awkward situation as I thought HR was on employees side and Conversations would be private. Ooops. 🫣 You are probably aware, but just incase ☺️

That I do understand but it absolutely should have been communicated along with any concerns before my probation ended. The disorganisation is what I find unnerving.

No I think you have misunderstood. I am the only person of colour in my team and beyond. They were referring explicitly to the fact the city we live in has more South Asian people than the previous city I lived in, and implied my community work is not as needed because of that.

Either way, I don't think bullying or diminishing the efforts of people about their choice of volunteer work when it relates a protected characteristic is a good look. Can you imagine if I was openly LGBT+ and spent my time volunteering with related causes and they said "x city is so progressive not sure why you bother".

I find that last point really interesting as this has occurred to me too. It just seems like a really obvious fuck up that you can't extend after the probation period has ended. I'm wondering if it is best to lay low until they ask me to sign something.

Yes, I know they are not my friends!

There's a clear legal precedent for not extending a probation period after it has ended so I'm sure they don't want the hassle of a court case.

Yes, thank you. And this should have been done before the probation ended.

Honestly I would think that if you see a long term future with this company raising a grievance 3'months in will paint you in a negative light.
I think I would concentrate on impressing them than trying to find a loop hole around your probation extension.
You can be let go in the first two years without any real justification if they decide they want rid of you

That's just me though.