Probation period confusion

Question

I was told by HR that my probation period was 6 months. After 5 months I handed in my resignation and quoted a 1 week notice period. The company have now come back and said my letter of offer said 3 months probation so I have to give 1 months notice. In good faith I have accepted another job with a start date in two weeks time. Do I have to lose the new job because I have to work 1 months notice?

Having reviewed the contract it does say my probation is 3 months. It also says that benefits like health care will be provided once I've passed probation. It also says that I will be informed in writing upon completion of my probation (And I have seen other people get this).

I have not received any benefits (health care) and I have not received any written confirmation of completing probation, in fact I received the opposite this week verbally being told my probation ended in January 2019. Is the verbal comment not a contractual extension of probation?

Answer 1

This is a classic case of something that can probably be fixed by negotiation.

First, let your new company know there is a problem with your notice period and you might have to delay your start, but that you are working on it. That's probably not a problem, but its good to let them know.

Now go to your company. Tell them you agree that the probation period was set at three months, but because you didn't receive notification that it was ended - and also because you didn't receive any of the benefits you were told you would get at the end - you assumed it was continuing. Tell them that if your probation really ended after three months then you absolutely want the benefits you are entitled to, and you want them backdated. Give them some examples of healthcare needs you would have addressed if you had had coverage.

Wait for them to say that they don't want to do that (which they probably will - it's a lot of trouble as well as cost). Insist on your rights. Suggest you might be prepared to sue to get those benefits. However at some point you can make them an offer - you'll drop your instance on your benefit rights if they agree to waive the one-month notice period and make it a week from the date you submitted your notice. Be prepared to let them negotiate you up to two weeks (this process will probably take a week so its not too bad).

Be prepared to be firm. After all, what are they going to do? Fire you?

Answer 2

This is easily solved by the correct language:

Send this email:

Hi Jane, there may be some confusion as three months was always the stated figure. In fact, if probation had been finished at three months I would have received the letter stating that and my benefits would have begun. My benefits did not begin. Again, my final day will be Jan 28, with thanks! Kindly Joe Smith."

And absolutely leave it at that.

You're done.

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A fait accompli ends 80% of life's problems.

Answer 3

Basic question: where you work ?

First of all, you make the error to follow what your HR said about probation: the probation period should be written in you contract, it is not something like "HR said that....", HR can tell your probation is 12 months but if the contract say 2 it is 2 months, and you should have checked your contract.

Now you have to solve the problem.
You have a few options: if your contract don't explicitly state the notice duration then there should be a general law that say it (for example, in Italy we can avoid to put a notice duration since there is a "category contract" that specify it). Also, the duration of the notice period depends on how long you are working for the employer till a certain maximum. If this is the case, you should check what the law say and if your notice period is shorter you can say HR it to HR.

If not and the contract you signed say you have 1 months of notice, then all you can do is to ask nicely to be let go anyway, pointing out that given that in the small amount of time you work for them you cannot be a critical employee. (well, maybe if you are the only one to do a particular job...). On the other hand the employer can keep some of your last pay, but it depends.

If nothing works, then you only option is to talk to the new employer about this and to push the starting date after your notice period end.

Answer 4

Note: I assume you meant you have not received written notification, otherwise this situation shouldn't have been such an ugly surprise.

If the contract you signed says 3 months, then your probation period is 3 months. The best route is probably to go back to your new employer and explain that there was a misunderstanding about the length of your probation period and the notice you're required to give, so you need to push back your start date to X weeks (sufficient to clear the required notice.) This is the easiest way to just get out and move on, I suspect, although it does involve eating a little crow yourself. I would avoid putting any blame on your old employer - stick to neutral language like "misunderstanding."

If your new employer is a good employer, they'll hopefully be understanding of this, and they should respect the fact that you're only doing this to adhere to your existing contract. After all, if you take the old contract this seriously it reinforces the idea that you'll honour their contract as well. If you cut and run, it will undermine their faith in you if/when they find out.

This is one of those "life isn't fair" moments. You can try to fight it if you want, but IMHO it's probably not worth the effort.

Answer 5

I’d say “please inform me as soon as possible whether my probation period ended and you pay my backdated health benefits, or whether my probation did not end and you accept my 14 days notice”.

This way, you give them a choice with no alternatives, and the option of paying you backdated benefits is such a pain in the **** that it is not going to happen.

Answer 6

What the company has failed to realise is that probation, like interviews, is not in one direction; you are testing out the company as much as they are you. If they are happy with you, than can suggest that the probation time be shortened, but it must be mutual and written. Messaging HR informing them that your probation could not have been terminated because you didn't consent to it should be sufficient to end this discussion.

Of course, read your contract to be sure that what you signed says this is the case. If your contract says that your probation time may be cut short without notice then there's really nothing you can do, other than learn that you shouldn't sign things you don't read.

If you're unable to get out of the contract, then inform them that you'll have to take 2 weeks unpaid leave; but because of the overlap of the employment times and contracts, you'll have to inform your new employers that while you're able to work with them as expected; you will officially also be employed by the other company also for 2 weeks.

Sadly, you're going to find it very hard not to burn bridges unless you're willing to work the 3 weeks rather than 1; but I'd suggest looking forward rather than back.

Answer 7

This sounds like you should seek legal counsel.

Also, do you have any holidays or overtime left that you could take ? If you're lucky you can use them to overlap at least partially with your starting time at the new company.

I also agree with most of the other answers given, so I won't repeat.