Dismissal during probationary period

It’s never easy dismissing employees during their probationary period, and we know no business wants to have to do this. But sometimes it’s necessary.

If you do find yourself in this position, it’s really important to tread carefully so you keep compliant with the law. So, we’re here to help you with the ins and outs of probationary periods. For example, are they required legally? From how to dismiss an employee during their probationary period to how to go about a probationary review meeting dismissal and more, here’s all you need to know about dismissal and probationary periods.

Are probationary periods a legal requirement?

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. To learn more about probation periods, take a look at our guide to probation period employment law in the UK.

How much notice has to be given during probation periods?

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 have to give the statutory minimum notice period. This 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
• 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.

Dismissal during probationary period procedure

Letting an employee go isn’t a nice part of running a business. It can be expensive, time-consuming and stressful – so it’s only natural that you probably want to avoid it. And that’s a good idea for the most part. In the same way as you’d 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 have to follow a fair dismissal process. Here are the eight fundamental considerations you need to know:

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.
3. Hold your disciplinary review meeting as soon as 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 they have 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 a probationary review meeting 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.

How to handle dismissal during 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 probationary period

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

Also, although employees who are still in their probation period can’t claim ‘straightforward’ unfair dismissal, they can still claim direct or indirect discrimination. Grounds for discrimination under the Equality Act 2010 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 get some legal advice.

Speak to an employment law expert, today!

If you partner with us, we’ll always try and help you avoid dismissals in the first place. But if you need dismissal procedure advice, we’ll be by your side every step of the way. Our HR & Employment Law 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, or contracts of employment, get in touch with our Employment Law experts using the form on this page, or contact us here.