The purpose of a probationary period is to allow a specific period for the employee and employer to assess the suitability of the role after having first-hand experience.
It also gives the employer an opportunity to assess objectively whether the new employee is suitable for the job taking into account their capability, skills, performance, attendance and general conduct while, at the same time, giving the new employee the opportunity to see whether they like their new job and surroundings.
What's the length of probation and can it be extended?
Contract of employment will usually set out whether or not the probationary period can be extended. In Kenya, the relevant law on probation is Section 42(2) of the Employment Act, which provides that a probationary period shall not exceed six months but it may be extended for a further period of not more than six months after deliberation with the employee.
This in other terms means that the probationary period cannot exceed an aggregate of one year. The purpose of extending a probationary period is to allow the employee further time to improve his/her performance to demonstrate competence in the full range of duties and required behaviors.
What rights do employees have while on probation?
Employees on a probationary period, whether it’s a one, three or six months probationary period will still enjoy statutory employee rights.
However, the law allows employers to restrict work-related benefits during the probationary period, for example, bonus schemes, private health care and life assurance. Notice periods are often shorter on probation periods, to allow either side to terminate the contract within a shorter time period than a permanent employee.
What rights don't I have during the probation period?
An employee on probation will probably find that he or she has less generous contractual terms as compared to colleagues who are not on probation. You are also likely to find that you are on a much shorter notice period until the probationary period has been passed.
When staff on probation is experiencing difficulties
If the employee is experiencing problems at any stage during the probationary period the management should discuss these with the employee and not wait until the next scheduled review meeting.
The primary purpose is to bring about a sustained improvement in performance and to ensure that the employee has had sufficient opportunities to achieve this.
Termination of probation
Although it is the practice among employers that an employee under probation and whom they do not wish to retain will always be released under shorter notice and without having to follow disciplinary procedures, recent court decisions say otherwise.
Where the reasons for termination are underperformance or gross misconduct, employers will be required to undertake proper termination procedures.