It’s commonplace for employers to include a probationary period in their employees’ contracts. This provision gives you a few months—usually from three to six—to assess whether the employee is right for the job. From time to time an employee will fail to meet your expectations. If this happens, you could give them a warning or extend their probation. But in some cases, you might feel like you have no choice but to dismiss them. If you’ve never had to dismiss anyone during their probation period before, you may be wondering how you should proceed.
Is a probation period dismissal legal?In the UK, there’s no specific law on probation, so yes, a dismissal during the probationary period is legal.
Do I have to give notice?Yes. The statutory minimum notice period is one week, but only where service is a month or more. You can choose to give more if you want to, but you’ll need to specify the amount in your employees’ contracts of employment.
Could an employee claim unfair dismissal?To make a claim of unfair dismissal, your employee would need to have been working for you for at least two years. Because an employee is usually on probation for six months at most, a tribunal won’t consider their claim. However, there are other claims an employee could make that don’t have a qualifying period. These include:
- Whistleblowing: This is when an employee claims you fired them because they exposed wrongdoing at the workplace.
- Discrimination: They could claim you dismissed them because of their age, gender, race or other protected characteristic.
- That you dismissed them because they reported health & safety failings.
Probationary period dismissal procedureYou should follow the guidelines in your written procedure, which may include:
- Write to your employee and invite them to a probation review meeting outlining concerns you have (although you don’t have to do this – you can ask them directly).
- The employee can be accompanied by a colleague or accredited trade union representative, but it is their right to pursue
- During the meeting, confirm that the employee received and understood the letter. Then, give them the opportunity to respond to the issues that you raised.
- Make a decision on the outcome of the probationary period—in this case, the termination of your employee’s contract.
- Give the employee another letter, this time confirming the decision and outlining when their last day will be.