The Employment Act, 2007 defines a probationary contract as a contract of employment which is of not more than twelve months duration or part thereof, is in writing and expressly states that it is for a probationary period (section 2 of the Act).

The act also provides that 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. This in effect means that:

• The aggregate period for every probationary contract MUST not exceed 12 months.

• At any time, an employer intends to extend the probationary period, the employer MUSTfirst seek the employee’s CONSENT.

• The extension of the probationary period by the employer MUST be communicated to the employee before the current/running probationary period lapses.

• If the probationary period lapses without the employer terminating it or extending it, and the employee continues to work for even an extra 1 day, his/her employment is automatically converted to permanent employment by operation of law.

• Probationary period can be of up to a maximum of 6 months. Thereafter it can be extended in any number of months provided the aggregate period does not exceed 12 months.

• Employees’ service probationary contracts have similar rights as other employees with permanent contracts when it comes to procedure of terminating their employment. i.e they need to be notified, and a fair hearing need to be conducted before being teminated.(See Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party) [2021] eKLR)

• Employees serving probationary contracts are not entitled to severance pay at the end of the probationary period.

• The extension of probation period must therefore be with the full knowledge and consent of the employee. Otherwise without such consent, the employer cannot change the same and where the employee refused to have such extension upon notice, the employee may terminate the employment (See Titus Githinji Nderitu v Consolidated Bank of Kenya Limited [2022] eKLR)

• Extension of probationary period to over 12 months is against the law and any extra day worked after the lapse of 12 months automatically confirms the employee to be on permanent employment by operation of law.

At A.O.WANGA ADVOCATES we are happy to assist you in all your employment related issues.

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