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Myth busting: Employees cannot be dismissed during their probationary period

Employment laws generate a lot of comment. Hardly a day goes by without the media reporting scare stories about the employment rights of UK employees, which are depicted as being anti-competitive, unduly restrictive and in many cases overly generous.

We are exposing some of the most common employment law myths and explaining the reality behind them. We are not pretending that employment law is easy – it isn’t, but generally it should not be difficult to get the basics right.

This month we look at the rights of staff and employers during a probationary period.

Myth

Employees cannot be dismissed during their probationary period.

Busted

You do not have to wait until the end of your employee’s probationary period before dismissing an employee, but you must give notice to terminate their employment in accordance with the terms of their contract of employment, or make a payment in lieu of their contractual notice.

It is common to require an employee to complete a probationary period before they are confirmed into the role. The length of the probationary period is not set out in law and is typically from 3-6 months, although it is possible to have shorter or, in exceptional cases, longer periods. The employee’s contract of employment should clearly set out the length of their probationary period, when it will be reviewed and if it can be extended (and, if so, for how long).

The contract of employment should also set out the notice period the employer is required to give to terminate the employee’s employment. Some contracts provide that, during the probationary period, employment can be terminated on shorter notice (subject to minimum statutory notice – set out below) than the notice to which the employee will be entitled once they have successfully completed their probation and had their employment confirmed.

Once an employee has worked for you for one month or more, you must give them the amount of notice set out in their contract of employment, unless this is less than the minimum notice periods set out in law, or the employee has committed an act of gross misconduct (and is not entitled to notice). The minimum amount of notice you must give to your employee is one week during the first year of employment, unless you dismiss your employee before the end of their first month of continuous employment. So an employee will generally be entitled to at least 1 weeks’ notice during their first year of employment.

Employees generally need 2 years’ service to bring a claim for unfair dismissal. Providing there is no discrimination involved, you are free to dismiss an employee during their probationary period without going through a particular procedure. This means that you don’t need to offer the employee a right of appeal (but check your disciplinary policy and the employee’s contract to make sure they don’t have a contractual right to appeal).

If the employee could assert a claim of discrimination or claim their dismissal is unfair dismissal for one of the automatically unfair reasons (e.g. pregnancy or health and safety), it is worth considering going through the process, just in case.


Employment Law Update - January 2017

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Melanie Stancliffe