Dismissal during probationary period

An employer unfairly dismissing an employee at her company.

You don’t have to have probation periods; however, they are recommended. They protect you and your new employee if things don’t work out as you initially hoped.

If you don’t have a ‘notice period’ section outlined in your contracts of employment and your employee decides to leave before their probation period ends, they must give the statutory minimum notice period, which is at least one week if they’ve been employed between one month and two years, one week’s notice for each year if they’ve been employed between two and 12 years and 12 weeks’ notice if they’ve been with you for more than 12 years.

You can set a different notice period for people on their probation in your contracts of employment.

As you’ve probably gathered by now, the key is that whatever the term, it should be in writing to show what‘s been agreed.

Probationary period dismissal procedure

Letting an employee go is not a pleasant part of running a business. It can be expensive, time-consuming and stressful – it’s only natural that most employers want to avoid it. In much the same way as you would only resort to formal disciplinary action based on the ACAS code of practice if informal methods haven’t worked, so dismissal should be an absolute last resort.

Before you consider dismissing someone during their probationary period, you must follow a fair dismissal process. Here are the eight fundamental considerations to follow:

  1. Keep written records throughout the process, so you can evidence that you’ve followed a fair process.
  2. Don’t base your dismissal on discriminatory grounds. This includes an employee’s age, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation, and disability discrimination.
  3. Hold your disciplinary review meeting as soon as is reasonably possible.
  4. Before the disciplinary hearing, make sure you let the employee know – in a written statement – what the allegation against them is, and make them aware of any evidence against them and possible consequences. Also inform them of the date, time and venue of the meeting so the individual has time to assess the situation.
  5. Make sure you give the employee their right to be accompanied during the disciplinary meeting.
  6. In the meeting, let the employee put their case forward, respond to any allegations, ask questions, and present their own evidence.
  7. Take action appropriate to the allegation on the back of the disciplinary meeting – this could be a verbal warning, final written warning, or dismissal.
  8. Allow employees to appeal your decision if they think it’s unfair – they have this right regardless of the decision or case and make sure someone more senior than the person who made the original decision deals with the appeal promptly and impartially.

For an in-depth look at how to dismiss someone legally, check out our free guide on it here.

Dismissal during the probationary period

You could choose to dismiss an employee during their probation period. Some of the most common reasons for this are:

  • Poor performance
  • Gross misconduct
  • Breach of contract

It’s good practice to clearly set out what’s expected of your new employee and hold regular review meetings to monitor their performance and further reiterate your expectations. This will prove beneficial as you’ll have no doubt spent time and money during the recruitment and training process already and you’ll want to make sure things are going smoothly.

If, despite your best efforts, things aren’t working out, you’d be within your rights to dismiss the employee. Remember though, even in their probation period, employees still have certain rights – like the right to be accompanied by a work colleague or an accredited trade union official.

If you’d like a quick refresher on what rights a new employee has during their probation period, check out our at-a-glance guide here.

Wrongful dismissal during a probation period

Terminating an employee’s contract can fall under wrongful dismissal if the reasons for terminating breach the terms of their contract of employment

Furthermore, although employees who are still in their probation period can’t claim ‘straight forward’ unfair dismissal, they can still claim direct or indirect discrimination. Grounds for discrimination include age; disability; gender reassignment; marriage or civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

They can also claim for ‘automatically’ unfair dismissals – for example, that they were dismissed for whistleblowing.

You should always follow a fair and consistent dismissal procedure and collect relevant evidence, especially as this is evidence for the reasons why the employee was dismissed. An unfair dismissal claim could lead to an employment tribunal and if you ever find yourself in this situation, it’s important you seek legal advice.

Speak to an expert

We’ll always try and help you avoid dismissals in the first place. But if you find yourself facing a dismissal procedure, we’ll be by your side every step of the way. Our experts are on hand 24/7 to help prioritise positive steps – like performance management, reviews, training and employee support programmes.

If you’ve any questions about dismissals, probation, get in touch with our Employment Law experts using the form on this page.

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