Recruiting the right new employee can be both costly and time-consuming. When it becomes evident that dismissal during the probation period might be necessary, it’s crucial to handle the process correctly, especially with upcoming changes in employment law.
Upcoming Changes: Unfair Dismissal Claims from Day One
As part of Labour’s Plan to Make Work Pay, new proposed legislation will allow employees to claim unfair dismissal from their very first day of employment, rather than having to wait for two years. This significant change means that the probationary period will require even greater diligence to avoid potential claims.
Due Diligence Before Dismissing During Probation
No dismissal should be taken lightly. Before deciding to terminate an employee’s contract during their probation period, consider whether additional training could address performance issues. Evaluate if clarifying expectations or identifying any underlying issues might resolve the problem.
It’s advisable to hold a meeting with the employee to discuss their performance issues. Inform them of the meeting in advance and allow them to bring a representative if they wish. Addressing concerns early can often help get an employee back on track.
To assist with managing probationary periods effectively, consider using our Employee Probationary Period Review Template. This comprehensive tool provides a structured approach for setting goals, assessing performance, and documenting reviews. Additionally, it includes template letters for extending the probationary period or dismissing an employee during the probationary period, ensuring that you handle these sensitive matters in compliance with the new legislation.
Check Contractual Terms
If dismissal remains necessary, review the employee’s contract for any specified dismissal procedures. Adhering to these procedures is essential to avoid claims of wrongful dismissal or breach of contract. Even if the contract does not outline a specific procedure, ensure that any action taken is fair and reasonable. Provide the employee with the relevant notice period or payment in lieu of notice, along with any accrued holiday pay.
Avoiding Discriminatory Dismissal
Even during the probationary period, dismissals cannot be based on discriminatory reasons such as race, sex, sexual orientation, gender reassignment, religion, pregnancy, disability, age, or marital status. Such dismissals are subject to claims from day one under the new legislation.
Additionally, avoid dismissing for reasons that could trigger automatic unfair dismissal claims, which are also eligible from day one under the new law.
Best Practices for Probationary Dismissals
While you are allowed to dismiss an employee at any time during or at the end of their probationary period, following a fair process is highly recommended. This not only reduces the risk of tribunal claims but also enhances your reputation as a fair employer.
Here is a suggested approach:
- Initial Meeting: Invite the employee to a meeting to discuss performance concerns. Provide advance notice and allow them to bring a representative if desired. If you decide that dismissal might be necessary, hold a subsequent meeting to discuss this decision.
- Consideration and Final Decision: If the employee requests reconsideration, take time to review their input before making a final decision. Adjourn the meeting if needed and reconvene to communicate your decision. Provide written confirmation of the decision and inform them of their right to appeal.
- Appeal Process: Although not a statutory requirement, offering an appeals process can be beneficial. This allows the employee to contest the decision and ensures that all concerns are considered. Keep the appeal process straightforward, but ensure it is fair and transparent.
For effective management and documentation, our Employee Probationary Period Review Template is an excellent resource. It helps streamline the process and includes template letters for extending the probationary period or dismissing an employee during the probationary period, ensuring you comply with the new legal requirements.
Consistency and Fairness
Ensure that your approach to dismissals is consistent across all employees and in line with company policies. This helps maintain fairness and reduces the risk of claims.
Need Further Guidance?
If you require assistance in developing your dismissal procedures or need help navigating the complexities of employment law, contact me.
Feel free to reach out to us to discuss your specific needs and how we can assist you.
