Dismissal during probationary period

09 July 2019

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.

If you let an employee go purely because of their poor performance or conduct, you shouldn’t run into any problems. But for the sake of consistency, you should still follow a set process. The first step you should take is to gather evidence of your employee’s poor performance. You’ll be able to use this in the probation review meeting to support your decision. Before you start the dismissal procedure, you should have informal meetings with your employee, during which you should explain your concerns. Don’t forget to keep a record of the dates and times of these meetings, and list what was said and what was agreed.

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Probationary period dismissal procedure

You 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.

Does a dismissed employee have a right to appeal?

Not by law, but it’s good practice to give your employee the right to lodge an appeal within five working days. It’s also good practice to allow for an appeal, as a dismissal will often be found unfair if there was no appeal.

Dismissal because of sickness absence

If a new employee is constantly taking time off sick during their probationary period, it’s understandable that you might want to dismiss them. But when a dismissal in the probationary period is due to sickness absence, you need to take extra precautions to make sure the dismissal is fair. If you dismiss an employee who’s receiving treatment for a disability, they could claim you’re discriminating against them. So long as you made reasonable adjustments for their disability—such as providing special equipment—a tribunal may see your decision as fair. Do remember, disability can be the reason for dismissal, provided you’ve exhausted all avenues of trying to help the employee in your workplace.

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