While dismissing during probation is generally simpler than dismissing a long-term employee, it is not without legal risk. Making key procedural errors, failing to document issues, or ignoring legal rights can quickly turn a simple termination into a costly tribunal claim. These ten points highlight crucial errors to follow employment law avoid ensuring a compliant and defensible process.
Key Takeaways:
- Discrimination claims can be made from day one of employment.
- Always follow some procedure; don't dismiss without a meeting or a chance to respond.
- You must be able to demonstrate that the employee received specific examples of poor performance.
- Failing to pay the notice period can lead to a wrongful dismissal claim.
- Avoid dismissals that are automatically unfair (e.g., whistleblowing).
The probationary period is designed to allow both the employer and employee to assess suitability for a role. For businesses, the ability to make a clean break with a poor-performing or unsuitable employee is often seen as a key advantage.
However, relying on the 'probation' label alone to justify an easy exit is risky. Even without the standard two-year service requirement for unfair dismissal, several legal pitfalls remain. Avoiding these crucial errors is essential for protecting your business from costly tribunal claims.
This guide by our Employment Law Consultants highlights the Top 10 Watch Outs When Dismissing During Probation.
1. Dismissing for a Discriminatory Reason
Do not dismiss an employee due to a protected characteristic (such as age, disability, race, sex, or sexual orientation). This can lead to a discrimination claim from day one of employment. Discrimination claims have no minimum service requirement, making this the riskiest error during probation.
2. Failing to Follow Any Procedure
While a full statutory disciplinary procedure might not be strictly necessary, you must not dismiss an employee without a meeting or without giving them a chance to respond. Best practice is to inform the employee of concerns, invite them to a meeting (allowing them to be accompanied by a colleague or trade union official), and allow them to appeal the decision.
3. Lacking Clear Documentation of Issues
Do not rely on vague recollections or unrecorded verbal warnings. You must be able to demonstrate that the employee was given specific examples of poor performance and was told what was expected. Failure to keep documentation, like detailed records of meetings, targets, and feedback makes it harder to defend a claim.
4. Failing to Communicate Concerns in Advance
You must not let an issue fester and then 'ambush' the employee with a dismissal at the end of the probation period. Employees should receive regular, constructive, and clear feedback on any deficiencies, giving them a genuine opportunity to improve and avoid dismissing during probation.
5. Ignoring Contractual Notice Periods
Do not immediately terminate the contract without honouring the required notice period as per the employment contract. The statutory minimum notice is one week after one month of continuous service. Failing to give notice or payment in lieu of notice can lead to a wrongful dismissal claim.
6. Not Making Reasonable Adjustments for Disability
You must not dismiss an employee for performance or absence issues linked to a disability without first exploring reasonable adjustments. Failure to make reasonable adjustments constitutes disability discrimination, claimable from day one.
7. Dismissing for an "Automatically Unfair" Reason
Do not dismiss an employee for exercising a statutory right, such as making a protected disclosure (whistleblowing) or asserting a right to be paid the minimum wage. Dismissals for these reasons are considered automatically unfair and override the standard service period.
8. Terminating Without Stating Clear Reasons
You must not terminate an employment contract without giving a clear, factual, and non-discriminatory reason. Giving a vague or misleading reason can create suspicion and open the door for speculation about an underlying unlawful reason. Always provide a clear exit statement.
9. Forgetting to Pay Accrued Holiday
Do not overlook the legal requirement to pay the employee for any untaken statutory holiday entitlement accrued up to the termination date. Failure to do so constitutes an unlawful deduction of wages. This is a common administrative slip-up.
10. Rushing the Decision to Dismiss
Do not make a rushed, ill-considered, or emotionally driven decision. Always take a moment to review the evidence, check the employment contract, employee handbooks, confirm all procedures have been followed, and ensure the reasons for dismissing during probation are defensible. Premature dismissal, even for gross misconduct, without a brief investigation can be risky. We would also recommend seeking employer advice.
Don't Let 'Automatically Unfair' Claims Undermine Your Business.
Relying on the standard two-year rule is risky when automatic unfair dismissal reasons (like whistleblowing) or day-one discrimination apply. You need HR specialists who know the nuance and up-to-date employment law changes.
Protect Your Business: UK Employment Law Consultants
Call 01789 653938 or schedule a consultation with our HR and Employment Law Consultants to navigate the exceptions and secure a legally bulletproof dismissal.
