Dismissal within probationary period

Most contracts of employment contain probationary period clauses. It is common for contracts to contain a provision that the first three or six months in employment is considered to be a probationary period.

If the employee proves satisfactory during the probationary period, the employment is confirmed. If there is still some doubt at the end of the probationary period about the employee’s suitability, the probationary period may be extended for a further period of time.

Sometimes however it is clear that a new employee is not suited to the role. This may be for a number of reasons. They may have committed an act of misconduct or it becomes clear that they do not have the skills required to undertake the role to the required level. The employee may prove to be a poor timekeeper or have an unacceptable sickness record.

So what do employers need to keep in mind if they are considering dismissing an employee in their probationary period? Firstly, employers should note that probationary periods have no special legal significance. They act simply as an internal review mechanism, providing a time-frame for assessing suitability for longer term employment. The more legally relevant issue regarding length of service is whether the employee has one years’ service (two years in GB) as, after this, the employee has the right not to be unfairly dismissed and can bring a claim to the Employment Tribunal.

Until the employee has one year’s service (or two in GB), (s)he cannot bring a simple unfair dismissal case. For this reason, many employers assume that they can simply terminate an employee’s employment during their first year’s service without explanation and without following the usual procedure of carrying out an investigation, holding a disciplinary hearing and offering the right of appeal. It is true to say that employers will usually not fall into difficulty if they let an employee go on performance or conduct grounds during their probationary period.

Therefore, employers are often understandably surprised to receive advice that, despite the fact that the employee cannot bring a simple unfair dismissal claim, there are still good reasons to follow a process before dismissing someone, even in their probationary period.

There are at least three reasons for considering undertaking a dismissal procedure when contemplating dismissing an employee during their probationary period:-

1. While employees cannot bring simple unfair dismissal cases until they have the necessary length of service, there are a number of circumstances where the employee does not need any particular length of service to bring a claim to the Tribunal. If the employee alleges that the dismissal was an act of discrimination or was because they blew the whistle on impropriety or asserted a statutory right, they can bring their claim to the Tribunal. For this reason, it makes sense to go through a process of explaining why the dismissal is being considered, providing evidence of the poor performance or conduct and confirming the reason for the dismissal in writing. A failure to do this opens the door to the employee alleging that the dismissal was for a reason that does not require a certain period of service in order to bring a claim. Having been on both sides of Tribunal cases where an employee with short service alleged that their dismissal was for a reason that did not require them to have one year’s service, we can say that it is helpful to the employer’s defence in the Tribunal if they can produce paperwork from a dismissal procedure, setting out the reasons for the dismissal, with accompanying evidence.

2. Time, effort and money has gone into recruiting and training the individual. It makes sense to take some time to make sure that it is the right decision to let the person go as further time, effort and expense will be required to recruit and train the replacement

3. As a matter of fairness, it is good practice to advise the employee that their dismissal is contemplated and give them the chance to make representations and to consider these before deciding to dismiss. The employee may say something that persuades the employee to give them another chance and, if this works out, that will be a good result for both parties.

In summary, no matter how short a time an employee has been employed, if an employer is considering terminating their employment, it is worth taking some time to go through a dismissal procedure before confirming the termination of employment.

For advice on terminating the employment of an employee during their probationary period or any other employment law / HR matter, please get in touch.


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