The essential guide to a fair process for dismissal during the probation period and for an employee with short service.

If you fail to make a good early impression in a new job you would be right to fear the sack, but how easy or difficult is it for an employer to do so?

Given an employee on probation or with under two years’ service has limited employment rights, you could be forgiven for thinking it is pretty easy and fairly risk-free to dismiss them.

Any member of staff with less than two years’ service can be dismissed for poor performance or misconduct issues and they cannot make a claim for ordinary unfair dismissal [1 cited 3.4.23]

But as with any type of dismissal, there are always risks when a decision is taken to fire any employee.

Employers do need to be extremely cautious and aware of the legal pitfalls when sacking an employee who has short service.

Even though it is widely thought it is not always necessary to provide reasons for the dismissal or follow a fair process, there are many reasons why a careful approach is always advisable.

Here we provide an important guide for both employers and employees for when consideration is being given to dismissing a worker during their probation period or when they have less than two years’ service.

 How to conduct a fair probation review process

The length of the probation period should be made clear. It is typically three to six months.

It is always advisable to follow a fair process before dismissing an employee, even during their first few months in a new job.

Here are some steps that should be included in such a process:

• Performance feedback: how a new employee performs during probation should be monitored and feedback given.

It can help to identify any concerns or training needs at a very early stage, meaning support can be given to address any relevant issues.

• Pinpoint any performance concerns: the issues should be clearly identified and evidenced and the individual given reasonable opportunity to improve. Performance expectations should be made expressly clear with the employee provided with clear examples to explain any relevant concerns about their work.

• If considering dismissal: arrange a probationary review meeting and inform the employee of the potential outcome.

Allow them reasonable time to prepare for the meeting and to be accompanied by a colleague or trade union representative.

Provide tangible evidence of any concerns and give the employee reasonable opportunity to respond to any issues raised.

• Making a decision: consider all options and decide on the outcome, and if it is actually fair to terminate the contract or extend probation.

The period can be extended if the employment contract provides for an extension of the probation period, or if an employer proposes an extension of the probation period and it is agreed.

• Provide a copy of the outcome in writing. If a decision is taken to dismiss the employee allow them to appeal.

Although an employee has limited rights to challenge a probation dismissal they can still make a claim for discrimination or wrongful dismissal [3 cited 3.4.23] .

Therefore, any decision to dismiss should be fair and reasonable.

Circumstances in which dismissal during the probation period can be unfair?

It is possible for a dismissal during the probation period to be considered unfair. This is despite the fact an employee has less protection against dismissal during this period.

It is why an employer should always conduct a fair procedure in order to avoid the following:

• Discrimination: This can occur if an employee is dismissed for any reason that is as a direct result of a protected characteristic under the Equality Act 2010 e.g. age, gender, disability, race, disability religion etc. [4cited 3.4.23] .

Such a dismissal can be found to be automatically unfair.

Employees are afforded specific protection by law if dismissed in circumstances where the dismissal violates their basic employment rights.

• Whistleblowing: If an employee on probation is dismissed because they are a whistle-blower, it can be considered an automatically unfair dismissal.

A whistle-blower is protected by law and should not be treated unfairly or lose their job because they ‘blow the whistle’ [5 cited 3.4.23]

An employee is protected by law if they make what is considered a protected disclosure e.g. report a criminal offence, someone’s health and safety is in danger or that an employer is breaking the law.

• Breach of contract: This can occur if the employee is dismissed without being given the required notice period,

With a dismissal during the probation period, employees are usually still entitled to a statutory notice period of at least one week [6 cited  3.4.23]

This applies if they have been in employment for one month or more. There is no need to provide notice to those employed for less than a month.

 There are potential risks for employers in dismissing an employee during the probationary period.

 it is why conducting a fair procedure and caution is advised in all cases, as there are some situations in which an employee may still be able to make a legal claim.

 Considering dismissing an employee who successfully passed probation but has under two years’ service.

An employee who has been in a job for less than 24 months does still generally have fewer employment rights.

But any attempt to fast-track their dismissal or cut corners should always be avoided.

After the probationary period has finished, an employer will still need to have a valid reason to dismiss an employee with less than two years’ service, and should conduct a fair procedure before ever doing so.

Similar to those on probation, an employee who has been in a role for under two years does not have the right to make a claim for unfair dismissal.

They may still be able to bring a claim for wrongful dismissal if there is a breach of the terms of their contract of employment by dismissing them without notice or payment in lieu of notice.

Or, they can make a claim if the decision is discriminatory or otherwise automatically unfair e.g. dismissal for whistleblowing or asserting a statutory right.

There should always be a valid reason for dismissal even when the employee has short service, as in some circumstances they can make a claim and take legal action.

So what is a fair process if considering dismissing an employee with less than two years’ service?

It will depend on the reason for dismissal, and there are some key steps that should be taken.

• The reason for dismissal should be identified and it should be clear and valid e.g. gross misconduct, poor performance, redundancy or some other potentially fair reason.

• There should be a fair and thorough investigation to establish the relevant facts and evidence.

In cases where alleged misconduct is being considered the ACAS Code of Practice guidance should be followed [7 cited 3.4.23]

• The employee should be informed in writing of the reason/s why dismissal is being considered and invited to a meeting to discuss the matter.

At any meeting that could lead to dismissal the employee should always be given the right to be accompanied by a colleague or trade union representative.

• The employee’s response to any concerns or allegations should be carefully and fairly considered, an outcome provided in writing along with notification of the right to appeal if a decision is taken to dismiss.

This is a non-exhaustive list of steps that should be carried out as part of a fair process. The particular steps required will depend on the specific circumstances of each case.

Company policies and procedures should detail what steps will be taken.

If there is any uncertainty, or concern about a process, both employers and employees should seek expert advice.