Recruiting the right new employee can be a costly and protracted process. So, what do you do when it becomes apparent that, for whatever reason, you will have to dismiss an employee during their probation period?

Due diligence before dismissing an employee during probation period

No dismissal from work should ever be undertaken lightly. Before you take the decision to let an employee go, it’s worth investing some time into the problem. Would the employee in question benefit from further training? Do you need to clarify and re-emphasise what is expected of them in terms of behaviour or standards at work, or is there perhaps a problem you don’t know about that might be the cause of the problem?

The best way to deal with any of the above is usually to invite the employee to a meeting and, where possible, tell them what the meeting is about in advance. You can invite them to bring someone with them to this meeting if they wish. Careful intervention at an early stage, in this way, can be enough to get the employee back on track.

Check the terms of their contract of employment

If you still feel that dismissal is inevitable, you must check the terms of the employee’s contract of employment. If it provides for a dismissal procedure, then you must follow that procedure. Failure to do so could result in your employee bringing a claim against you for wrongful dismissal or breach of contract.

Even if there is no mention of a dismissal procedure in the employment contract, you should still act in a way that is fair and reasonable. You must also always give them either the relevant notice period, or a payment in lieu of notice and any untaken accrued holiday.

The reason for dismissal

Even if they are still in their probationary period, you cannot dismiss an employee for a reason which would be discriminatory. This includes the employee’s:

• race or nationality;
• sex;
• sexual orientation;
• gender – as a result of reassignment surgery;
• religion or beliefs;
• pregnancy or absence due to maternity leave;
• disability;
• age;
• marital or civil status.

If you dismiss an employee during their probation period for any of the above reasons, even if they have only been employed for a matter of days, they will be able to bring a claim against you in an employment tribunal.

You should also avoid any reason that would give an employee any automatic unfair dismissal rights. In these cases, the usual two-year qualifying period for bringing an unfair dismissal claim does not apply and the claim can be brought from day one.

You can dismiss an employee during their probation for reasons such as poor performance, bad behaviour, or persistent lateness or absence from work, but bear in mind that there may be an underlying problem such as a disability. The best way to find out is to discuss any problems with the employee to get their point of view and explanation. Never rush into any decision to dismiss.

Best practice for dismissing an employee during probation

If you’ve decided to dismiss an employee, perhaps for poor work performance or bad conduct, you can do so at any time – either during, or at the end of, their probationary period. You don’t have to follow a procedure, give them a warning or even provide notice. However, it is considered good practice to do so.

Following a fair procedure will not only reduce the risk of any claims against you at a tribunal; it will also help build your reputation as a fair employer. With that in mind, you will ideally have a procedure in place which can be followed in the event you need to dismiss someone, whatever the length of service. It should be somewhat like the process outlined below.

Meeting with the employee

As mentioned above, it is a good idea to invite the employee to a meeting to discuss concerns and try and agree a solution. If dismissal is deemed to be unavoidable, invite them to a meeting to discuss this action. Again, let them know that this is what the meeting is about in advance.

If at that meeting the employee asks you to reconsider, make sure you take a little time to do so. If necessary, adjourn the meeting for a short time and then reconvene to let them know your decision. Provide a copy of your decision in writing in the next few days and let them know they have a right to appeal.

An appeals procedure

As part of your dismissal procedure, you may also provide an opportunity for the employee to raise an appeal. However, if your contract of employment does not require this, you may only wish to offer the opportunity to appeal where the case is particularly difficult or rancorous. The appeal stage can be kept simple, but the key is to give your employee the chance to raise objections, and for you to give due consideration to the matters which they may raise.

Remember: while you do have a measure of freedom to dismiss someone during their probationary period, you should always ensure you treat all employees in the same manner and have a consistent approach to dismissal from work.

Looking for more assistance or guidance in creating your own dismissal procedure? Are you considering the need to dismiss an employee, but lack the experience or staff equipped to handle this type of procedure? At Springhouse, our team of employment law solicitors have the knowledge and experience to provide you with legally sound advice and direction. Feel free to get in touch with us today to discuss your impending needs.