As an employee, it would be gruelling to be in a perpetual state of probation. As an employer on the other hand, it is more time consuming to have a new employee on a consistent long period of probation because of the time taken in evaluations and the possibility of going through the recruitment process one more time.
In my opinion, a perpetual or extremely long probation period is a red flag. It communicates that the employee may be unfit for the role and often leads to the questioning of the ability of the employer to make sound decisions.
It may also indicate that the employer is unsure of what the employee is supposed to do and maybe; just maybe; the employer needs to improve the organization's processes or performance matrix.
What is the maximum probation period in Kenya and what would be considered best practice?
- The law under Section 42(1) provides for a probation period of 6 month's from the date of employment; Employment Act; Kenya
- The probation period of 6 month(s) may be extended in the event that the employer and the employee agree on it. The understanding is that probation period can be 6 months but could be extended to a total of 12 months; Employment Act Kenya;
- It follows then that if the parties do not agree to extension of the probation; there will be a termination of the contract of employment;(2) A probationary period shall not be more than six months but it may be extended for a further period of not more than six months with the agreement of the employee.
- It should however be understood that the provisions of Section 42 relate to a maximum probation period. As an employer best practice is to set a the probation period (preferably a shorter probation period) in your Human Resource Manual and employment contracts;
- If an employer sets a shorter probation period; the courts will follow the employer's Human Resource Manual/Guide and/or the Employment Contract in interpreting any issues related to the length of the probation period. Elizabeth Mwikali Mwendwa v Kenya Investment Authority [2018] eKLR? "Having found that the polices and procedure manual only provided for an extension of a probation period for a maximum of 3 months, the purported extension of the period for a further 3 months as was done through the Claimant’s letter .....was without basis, it was null and void"
- From the look of the above case; there is suggestion is that the law provides for a probationary contract to ONLY be extended once. (This is just my opinion and interpretation of the above case)
- A probation period and its extension (if any) should be a continuous period with no breaks whatsoever. In the event that there is a break (even of a few days) between the lapse of the first phase of probation period and the commencement of the second phase; then the second phase of the probation will be null and void. The employee will be deemed to have completed their probation and confirmed for empployment.Daniel Mutuku Njuguna v Kenya Institute of Mass Communication [2021] eKLR"let me point out that my understanding of this provision is that where there is an extension of the probationary period, the extended period must commence immediately at the point where the initial probationary period ends.?................the initial period of probation must be continuous with the extended probationary period (if any), I find that the purported extension that was done through the letter dated 12th October, 2016, almost five months after the lapse of the initial 6 (six) months’ period and a continued work by the Claimant for the Respondent, was devoid of any legal foundation and justification, practice, and reasonableness.? To say the least it amounted to an unfair labour practice."
- Lastly an employee's confirmation is deemed to have happened when the employee has passed the last date of their probation period without an immediate extension of the probation, communication from the employer and/or termination of the Agreement. The employee is allowed to legitimately expect that their contract has been confirmed if no communication is issued.In the words of THE HONOURABLE JUSTICE OCHARO KEBIRA sitting in Daniel Mutuku Njuguna v Kenya Institute of Mass Communication [2021] eKLR"This would be the legitimate expectation of any employee and or any reasonable man."
See you on the next edition of Legal Counselling.
