Should our disciplinary procedure be applied during the probationary period?

Posted in : Seamus Says - Employment Law Discussion on 1 December 2017
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

Q. Should the investigation or disciplinary procedure be applied during the initial six months probationary period? And I think your answer here may be very much yes.

Seamus: Yes. Well, absolutely. I mean I think that gone are the days where anyone could just bring the employee and say, "I reviewed your performance and you're being dismissed today." The reality is that and certainly in my practice what I see a lot of is that you will continue to get claims for unfair dismissal from employees that are less than 12 months in the position or they don't have the requisite 52 of a period.

But what they'll do is they'll bring the unfair dismissal claim on the basis that they feel that they have been dismissed because of one of their protected characteristics or because of they raised a health and safety complaint or public interest disclosure through whistleblowing or something along those lines.

So it's not just safe for the employer just to say, well, they're only here six months, so we can just get rid of them willy-nilly. The reality is that there is a statutory dismissal procedure in place, the 1-2-3 procedure that we're all aware of. For any dismissal, that should be applied, because if the person brings the claim for that on the basis that their dismissal is on the discriminatory basis for instance, if they bring that claim and they succeed, then the tribunal has the right to look at the dismissal, decide that it wasn't within the procedure and increase the award by up to 50%.

Scott: And it's automatically unfair.

Seamus: It's automatically unfair. So it really does put the employer on the back foot. In my view and my advice tend to be always with clients that if you have a problem with the employee, let them know where the employee is, give them an opportunity to try and improve during that period.

If that doesn't work, it doesn't move them on to the standard that you need them to be at, then if you are going down the route of dismissal that you're putting up and you're inviting them to the meeting and writing and you're telling them what the problem is and what the potential outcome is. Second that you're holding the meeting and there’s a right of appeal, that will at least keep you safe from that point of view of the...

Scott: If you started a new job, you'd want to know the reasons why and think that you had a fair crack before you were dismissed.

Seamus: Absolutely.

This article is correct at 01/12/2017

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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