Be Aware - December 2019
“We have a performance issue with an employee who is coming to the end of their 3 month probationary period. How long can we extend the probationary period?”
An employer may choose to make the continued employment of a new recruit subject to the successful completion of a probationary (or trial) period by including provisions to this effect in the contract of employment. The purpose of a probationary period is
- To allow both parties to test the suitability of the role to the individual and of the individual to the role, and
- To terminate the employment on shorter notice than would otherwise apply should it become apparent that things are not working out (provided that any such notice period is not less than one week after continuous service between one month and two years to satisfy statutory minimum notice requirements).
While there is no law regulating how long a probationary period should be, there is an expectation that it must be reasonable. Generally, a probationary period is likely to be between three and six months, depending on the nature and seniority of the role in question, and the employer’s requirements.
If an employer is not yet convinced of the employee’s suitability for the role by the end of the probationary period, and believes that with further training and more time the employee’s performance may improve, it may decide to extend the probation rather than simply terminate the employment, or allow the employee to ‘pass’ their probation.
Usually the provisions governing the extension of a probationary period (including the circumstances under which it may be extended and the maximum duration of such an extension) are included in the employee’s contract of employment.
If there is no provision for an extension, the probationary period will naturally come to a close at the end of the relevant period, and the employee will be entitled to the standard contractual notice if the employer were to decide to terminate the contract at any time after that stage – unless the parties agree to extend the probationary period, by consent, prior to it ending. In practice, it is likely that an employee would be inclined to agree an extension if the alternative might be dismissal.
When it comes to extending a probationary period, an employer should be in mind that:
- Any extension should not take the employment too close to, or beyond, the qualifying period for an unfair dismissal claim (2 years’ service), as this may make the probationary period of no practical use if the employee has already qualified for unfair dismissal protection.
- There is no qualifying period needed to bring a discrimination claim, so if the reason for the extension, or the manner in which it is implemented, appears to target an employee who has a protected characteristic there may be risk of a claim under the Equality Act 2010.
- It may therefore be prudent for the employer to consider setting out in writing the reasons for any extension, what is expected for the employee to pass the probationary period (e.g. particular issues that need to be addressed, or targets that need to be achieved), and the new expiry date.
- The potential relevance to the implied term of trust and confidence, particularly where the extension or the duration of it is wholly unreasonable in the circumstances, or where the employer has acted irrationally in the exercise of any discretion it may have under the contract to extend the probationary period.
Is the covert surveillance of employees under suspicion of theft a breach of their Human Rights?
No, according to the European Court of Human Rights.
In the case of López Ribalda and others v Spain the court held by a majority of 14 to 3 that no violation of the employees’ right to respect for their private and family life had occurred.
The case concerned a Spanish supermarket where there was a high level of theft. Initial investigations led to a small group of employees being suspected of theft and, as such, the employer installed covert recording equipment. The surveillance was limited to two weeks and the recordings were confined to the small group of individuals.
At the initial trial it was argued that the employer’s failure to inform the employees of the recoding in advance was a breach of their right to respect for private and family life and the matter was referred to the Grand Chamber of the ECHR. The ECHR held that employees should have a limited expectation of privacy at work on a supermarket floor. As the employer had taken steps to confine the circulation of the recordings it agreed with the decision of the Spanish courts; that a fair balance had been struck and the intrusion was proportionate.
It should be noted that three judges did not agree, on the basis that a fair balance had not been struck and that further safeguards were needed, particularly with regards to new technologies which make it all too easy to intrude and violate employees private and family life.
The case is welcome news for employers as it provides clear guidelines on the use and appropriateness of covert recording. Provided the reason for covert recording is substantial (here it was theft), correct safeguards are put in place, any covert surveillance can be justified, and is kept to a minimum, recording of employees is a lawful and legitimate investigative tool. However, care should be taken in its use as well as how widely any subsequent recordings are processed and disclosed.
To claim harassment under the Equality Act 2010 a Claimant has to show that conduct created an intimidating, hostile, degrading, offensive or humiliating environment. Furthermore, in discrimination law, a Claimant generally has to establish a basic or “prima facie” case that they have suffered discrimination before the burden of proof then switches to the Respondent.
The Employment Appeal Tribunal (EAT) in a recent case Raj v Capita Business Services had to consider the interplay of these provisions. It had to consider whether, in an harassment case, proving that the conduct itself created an offensive or humiliating environment was enough to give rise to a “prima facie” case, that such conduct related to a protected characteristic such as (in this case) the Claimant’s sex.
The Claimant’s (female) manager had massaged his shoulders in an office environment, which the Tribunal found was unwanted conduct producing an offensive environment for him. The Tribunal rejected part of the manager’s evidence, but accepted that the conduct was not related to the Claimant’s gender and found that the reason for the shoulder massage was an attempt at encouragement. The harassment claim therefore failed. The EAT subsequently agreed with the original Tribunal. Essentially, the Claimant had proved that there was unwanted conduct producing an offensive environment but that was not enough to shift the burden of proof to the employer. To establish the “prima facie” case that shifts the burden of proof to the employer, the unwanted conduct had to relate to the protected characteristic (here the Claimant’s sex).
The case is welcome news for employers and shows that the Tribunals should properly analyse the alleged unwanted conduct and the reason for that alleged unwanted conduct before it finds that the burden of proof has shifted to the employer.
Data protection is a fact of life and the GDPR has been in effect now for some time and, unlike some predictions, the sky has not fallen. However, data protection is an ongoing issue and it is easy to let your guard down. As we are now starting to see customers becoming more aware of their rights and also more aggressive regarding perceived breaches, we have decided to put together a series of articles regarding everyday data issues.
Newsletters are a common tool for businesses to stay in touch with their customers and add value to any offering. Normally these are a relatively low risk activity. However, they also represent a risk to the business if the data used in their creation and distribution is not managed correctly.
Processing is defined under the GDPR at Article 4(2) as
“Any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;”
As such whenever you are collecting, organising, structuring, storing… disclosure by transmission or disseminating; such as providing an individual’s email address, then you will need to be complying with GDPR/ Data Protection Act 2018.
Data subjects email addresses should not be visible to other recipients without their informed consent. There have been a number of high profile incidents of a group of recipients being “CC’d” onto an email and therefore having details fully disclosed.
The effect of any disclosure as above will depend on the nature of the email sent. In a recent email sent to participants in the child abuse enquiry, the result was that significant and sensitive personal details were disclosed (i.e. whether they had suffered child sexual abuse), and as a result the commission was fined £200,000.00.
Whilst it is unlikely that any breach from a motor dealer will be so significant, any breach will risk at least a reputational loss. We therefore strongly advise that any such group emails be either disseminated individually or through measures that obscure the identity of other recipients such as BCC or blind courtesy/carbon copy.
The above is a very broad overview of one aspect of GDPR. The legislation and guidance is still developing. We will endeavour to keep you informed through regular articles and case studies. For further information please visit the Information Commissioner’s Office website.
Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in a situation above, contact us on the IGA Direct Member Helpline or 0845 305 4230 at any stage for advice and assistance as appropriate.