I joined a company in August last year on a six-month probation period. I believe I have performed well during that time: I’ve accomplished a number of tasks and corrected a number of my predecessors’ mistakes.
As we approached the end of my probation I asked for a confirmation that I’d passed from HR and the MD. Our HR manager replied that she would need to talk to the MD. I chased it up when I did not receive any reply for a week. A month later, still no response.
I have also been pushing for a salary review as I don’t believe mine reflects my contribution. This triggered a response from HR/the MD saying we will discuss this and the probation period next month, which will be eight months after I joined. Are they allowed to extend my probation by two months, even though they have purposely not replied to my request and informed me it was extended? Am I entitled to back pay if my salary increases and what comeback do I have if my salary request is refused and they extend my probation?
The phrase “probationary period” can be misleading. In practice, it means that for, say, the first three or six months, employment can be ended on short notice – usually one week. After the probationary period ends the notice entitlement increases – perhaps to one month in the first instance.
Some employment contracts expressly refer to the possibility that a probationary period may be extended if the employer isn’t sure about an employee’s performance. In practice that means the period during which employment can be ended on short notice is also extended.
Your employer has allowed your employment to run on for eight months. As your employer hasn’t expressly referred to an extension you can be fairly confident that the period has ended – but that probably means that you are now simply entitled to a longer notice period.
You have asked for a salary increase – to reflect your contribution to the business. You ask what happens if the employer later agrees to an increase. Often a contract will be completely silent about pay increases. At the most it may offer a commitment to an annual review – but on the basis that there is no commitment to award an increase. In practice, the award of a pay increase is a unilateral act by the employer: the employee generally has no contractual right to an increase.
Your employer may decide to increase your salary, but it will be for your employer to decide the size of the increase and the date from which it is payable. I’m afraid you have no claim based on your employer’s prevarication over the probationary period, and no right to claim that any pay rise should be back-dated.
We are recruiting for a forklift truck operator role and have narrowed it down to two final candidates. One of these is a woman, which would make her the first female truck driver on site in a number of years. Both candidates have similar experience and it’s a close call as to who gets the role. My concern is that a fellow manager, who’s helping with the interviews, made a couple of sexist jokes about women drivers after the first interview. I can only imagine the flak she’ll catch among the Brut wearing men’s men who dominate our shopfloor operator roles. I don’t want to discriminate, but I’m seriously concerned we may have a sexual harassment case within six months if I were to hire her. How do I resolve this and make a fair decision that doesn’t discriminate on the basis of gender?
A person directly discriminates against another person where:
- He treats him less favourably than he treats or would treat others, and
- He does so because of a protected characteristic.
Protected characteristics include sex, race, disability, sexual orientation, religion, belief and age.
A complainant may compare their treatment with that of a real comparator or a hypothetical comparator.
If you refuse to employ the female candidate – fearful of what might happen to her later – she would say that the ‘less favourable treatment’ of her (i.e. the refusal to consider her for or offer her the job) was by reason of her sex. She could compare herself with a male candidate (either the man who was given the job, or a hypothetical male applicant having the same qualifications as her) and say that a man wasn’t (or wouldn’t have been) treated in the same way. She would be the victim of direct discrimination.
In relation to indirect discrimination, which is a parallel but distinct topic, there can be occasions where discrimination is justified. But in the case of direct discrimination, save in relation to a very specific set of circumstances relating to age discrimination, there can never be any justification. It would be no defence to say that you were protecting the female applicant from sexual harassment which she might suffer at a later date.
You say you have overheard sexist jokes and have concerns (presumably based on some evidence, even if anecdotal) that the woman could be the victim of sexual harassment. You have a diversity problem – and should fix it. We know it’s ‘a close call’ between the final two candidates. It’s possible the female candidate would prove to be the better of the two. Wouldn’t it make sense to recruit on merit?
If she is the best candidate then recruit her. And whilst you are waiting for her to work her notice with her current employer, overhaul your policy on bullying and harassment, arrange some workplace diversity training (perhaps via Acas), and get your HR Manager to issue a timely warning to staff that bullying, harassment and discrimination will not be tolerated.
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