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The Period of Trial and Assessment in Employment

The probationary period of employment is a tricky one. That is when both parties to the employment relationship size each other up before making the big and final decision to engage with each other on a more permanent basis. And that is why it is difficult to determine what the final hiring decision will be. The employee may walk out before the probation is over or the employer may fail to confirm the employment. In any case, each party has the right to back out of the initial employment relationship for any motivation whatsoever.

With the above information, it will be prudent to take a close look at what exactly constitutes the probation period. We will also seek to consider the dynamics of termination of employment during probation as well as expectations of the employee and employer. Then we will discuss into detail the realities and repercussions of a female employee getting pregnant during the probation period and the possible actions or remedies available to the employer under such circumstances.

What is Probation?

The Collins Dictionary defines probation as a “period when someone is assessed for suitability for a job. The words of note include assessment and suitability. The probationary period is a period of trial, supervision and appraisal. A more intensive evaluation and appraisal system underpins an effective probationary programme. Here, new employees are assessed rigorously to ascertain whether they are suitable for the job they have been hired to perform. Employees are not only assessed on their skills and qualifications but also on behaviour and passion for the job. The job description and expected performance outcomes are discussed at the beginning of the probation period to agree on the company’s expectations.

A systematic employee orientation programme initiates the probation programme. New employees are taken through well planned information sessions where they are briefed on necessary knowledge on the operations, focus and expectations of the company. Employees are also instructed in necessary knowledge for undertaking their jobs and equipped through

specific training on the use of relevant equipment needed on the job. Indeed, it is a requirement of the Factories, Offices and Shops Act, 1970 (Act 328) that nobody shall be employed in a job that is liable to cause harm unless s/he has been fully instructed as to the dangers likely to arise in the job and precautions to be observed. The provision continues by stating that unless an employee has received sufficient training in the work or process, or is under adequate supervision by a person who has thorough knowledge and experience of the equipment or process in use, that employee may not be employed in that job or by extension be made to undertake the job.

Termination during Probation:

It is acceptable practice that where upon the assessment of an employee during probation, that employee’s performance is found to be unsatisfactory, the employment may be terminated by the employer. This is basically achieved by failing to extend the probationary period or a refusal to confirm the employee’s appointment. There is one major and obvious issue that could lead to termination of employment during the period of probation. This is nonperformance or unsatisfactory performance by the employee. Most employers fail to confirm employees in their jobs after probation because of nonperformance. However, other issues may come to play and lead to termination of employment during probation. For example, the issue of trust between the employer and employee may lead to the termination of employment during probation.

Where there is lack of trust or a perception of same, an employee may decide to leave a job during probation. In the same way and for the same reason, an employer may decide to let the employee go. Then there is the issue of suitability. Sometimes despite appropriate qualifications and skills for a job, an employee may just not fit the ‘profile’ for the job. The employee would be said not to be right for the job. Under such circumstances, employment may not be confirmed.

Termination of employment also means the provision of necessary and appropriate notice prior to termination. Termination notice during probation may range from a few days to two weeks. Actually, Labour Laws of Ghana do not specify the duration of notice for termination of employment during probation. The Labour Regulations, 2007 (LI 1833) only states that where the contract of employment specifies probation, the duration of such probation must be stated as well. However, as part of standard probation clauses in contracts of employment, duration of notice of termination during probation should be stated.

On grounds for termination during probation, the Law again is silent. This is acceptable in practice as probation is normally used as trial period for the employee and a familiarization period which the employee uses to make a decision about remaining in the job. It is the only period and final moment for making a hiring decision or rejecting an employee without going through the rigorous processes of termination of employment in normal permanent employment. For the employee, it is the time to assess the employer and job as well as make the final decision whether s/he is actually taking the job. Hence, there should not be any acrimony where a party refuses to go on with the employment relationship after probation. An employment relationship represents a mature relationship based on mutual trust and dialogue. It could also pass as a lifelong, interdependent relationship. Therefore, each party must have the right to freely walk away from the relationship where a party is not very certain about the other.

So what happens when an employee gets pregnant during probation? Wow, I have never been able to answer this question on so many occasions I have been asked. It is very complicated, loaded and technical at the same time. Nothing stops a female employee from getting pregnant on the job. But rightly or wrongly, when pregnancy occurs during the probationary period, an employee can be close to 100% sure to lose her job especially in public sector employment. Let’s first look at the rights of a pregnant worker.

Rights of a Pregnant Worker:

Unless with her consent, a pregnant employee may not be assigned to do night work between the hours of 10pm and 7am or assigned to do overtime work. Again, an employer shall not permanently or temporarily assign a pregnant woman to do work outside of her place of residence, especially when pregnancy gets to the 5th month and beyond. Place of residence in this sense may be considered as place of work within a geographic area of operation. For example, a pregnant woman who normally is domiciled in Accra and works from an office in Accra may not be assigned work outside of Accra.

A pregnant worker is entitled to at least 12 weeks’ time-off from work as maternity leave and where the birth is abnormal such as in the birth of more than one child or caesarian/surgical birth, at least two more weeks may be granted as an extension of the maternity leave. Apart from maternity leave, a pregnant worker shall also be granted annual leave in addition to the maternity leave. A nursing mother is entitled to at least an hour of interruption of work during working hours to nurse her baby. This usually lasts for a period of six months which is medically accepted as the mandatory or recommended breastfeeding period for every nursing mother.

From the above, it is obvious that getting pregnant on the job will lead to a substantial time spent off the job.  It is my estimation that a pregnant employee is entitled to at least an approximate time of 33 weeks off work during pregnancy and after delivery. This includes time off for prenatal care, additional time for abnormal birth, maternity leave, annual leave, time off for breastfeeding, and postnatal care for mother and baby. 33 weeks works out to about 8.25 months of not being fully at work and you would agree that this constitutes a huge chunk of an employee’s annual productive time.

I do not wish to undermine the importance of childbirth as a necessary role of the working woman today. But when a woman gets pregnant on the job, you can understand that this will amount to some productive losses for the employer. Where the woman is an established employee on the job, such time losses are accounted for in the manpower plan. Either another employee is assigned to deputize or stand in for the pregnant woman in her absence from work before and after delivery or a temporary staff (and additional hand) is employed to support the pregnant woman. Either way, this results in extra cost for the employer. A pregnant woman is also temporarily a fiscal or psychological burden for the organization and other employees as they have to psychologically and socially accommodate the pregnant employee in every workplace activity. This is because the pregnancy period is always a trying and challenging time, full of emotional imbalances, depression and other experiences for most women.

Realities and Repercussions of Pregnancy during Probation:

So in the event of pregnancy during probation, it is obvious that a lot will have to be done to maintain a balanced productive output from a pregnant employee. So when a few months into employment, a woman gets pregnant on the job, most employers get worried and obviously agitated. This is because as discussed above, pregnancy means a lot of time off work before and after delivery. How is a new employee expected to learn the ropes, settle in quickly and begin to deliver expected results while managing a delicate and complicated situation such as pregnancy?

Remember we said that the entire probationary period is a trial period. So everything done by an employee – every decision, every action and every behaviour is subject to assessment. And the assessment is normally against one simple fact which is whether the employee is showing or has shown a determination to be successful in the job or the exhibition of passion for the position. Simply put, an employer during probation will be seeking to know through an employee’s actions and behaviour whether the employee can prove that s/he truly needs the job.

So when an employee gets pregnant a couple of months into a job or perhaps fails to declare that she is pregnant during an interview, such behaviour is seen as dishonest, concealing vital information and a total lack of focus on the part of the employee. It is important to note that this situation is not necessarily connected to discrimination on the basis of pregnancy. It is basically a simple matter of choice as to who an employer needs to hire for a particular position which is well within his rights. The repercussions of getting pregnant during probation is either losing your job or being made to reapply after delivery for consideration. Unfortunately in our high unemployment circumstances in Ghana, an employee may not get a second chance as someone would have taken the space upon return from childbirth. This is the simple but cruel reality.

So some basic questions to ask in aiding decision making on the above challenges. Can you change your employer’s mind and get them to recall you? I am not sure and perhaps your chances may be higher when you have delivered and are fit enough to return to work. Of course it is not your fault that you got pregnant and especially, that it is your private life. But where your private decisions have a significant impact on company business and profits, the employer calls the shot. Is the employer’s action not hash, insensitive and uncompromising? Well, depends on where you stand. But for a productivity and profit minded organization and employer, sentimentalism and philanthropy may not be anywhere close to the productivity equation.

My advice. When planning your career as a woman, plan when and how to make your babies if you are to survive in the world of work. No employer can fire you for getting pregnant on the job. But where faced with a decision to engage a pregnant job candidate during probation it is well within their rights to say “NOT THIS TIME”. Wait for the confirmation of your appointment. Then celebrate with a short honeymoon with your partner. Maybe you may get lucky and pop out a baby nine months later. Anytime before the confirmation of your appointment is bad timing and wrong career decision making.

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