What is the minimum a company should do when dismissing someone still on probation?Posted in : Seamus Says - Employment Law Discussion on 6 July 2018
Q: What is the minimum a company must observe in terms of our obligations when dismissing somebody who is within their probationary period?
Scott: There is this idea that because it's probation and less than a year of service, or they have less than a year of service, there is no obligation to provide reasons or to allow an employee a chance to address the company's concerns. What are the risks to a company who manages a probationary dismissal in this way?"
Seamus: Well, it's a valid question and it's something that I come across quite a lot in my practice. I either have a situation where the employer has just made a decision and they've done it on the basis of saying "I've been told or I understand that if they don't have 52 weeks of service, they don't have employment rights and they can't bring a claim. So I just decided to dismiss."
That happens quite a lot. I will get questions like that on a daily, or not on a daily basis, but on a weekly basis from clients, saying "Can we not just get rid of this person? They're here less than the 52 weeks." Worthwhile pointing out at this minute just be careful. I'm sure that for the vast majority of our listeners, they're all experienced. But just to be clear about it, in England, the position is different in terms of the qualifying period. In England, it's two years. In Northern Ireland, it remains at one year, 52 weeks.
A lot of the advice that you go on to any of the websites or any of the commentary, a lot of them are English-based and will tell you it's two years. And I've had a number of clients that have fallen into that trap as well. So to be clear about it, in Northern Ireland, it's 52 weeks.
Scott: And we also have the 1-2-3 procedures here, which need another jurisdiction, but doesn't necessarily have to be an unfair dismissal claim attached to it.
Seamus: Yes, exactly. So my view in terms of this is that how I would advise a client is simply that when they're coming up, either during their probationary period or where they're coming up towards the review meeting, that they send a type-on letter to the employee. So they put a letter to the employee to say "I'd like to invite you to the probationary meeting." And if they have concerns about their performance during the probationary period, and essentially, the probationary period is to assist the company to decide if the employee has a long-term future with the company. That's it.
So it's a type-on letter inviting them to the meeting, setting out what's the meeting's going to be about, setting out any concerns that the employer has in respect of performance, and telling the employee that there's a risk of termination of employment.
The second part is you hold the meeting with the employee, and yes, you do give the employee an opportunity to come back to you and say, "Well, here's my version of where I'm at and how I think I performed." And there's consideration given to that. And if there's an outcome, whatever that is — it can be an extension, it can be it passed, or it could be that you're at the point of dismissal — then there's a standard letter issued, dismissal letter, setting out the reasons for the dismissal, why the dismissal is essentially taking place, and that there's a right of appeal there in relation to that.
What my clients will come back and say to me is "Why do we need to do all of that? This is a lot of nonsense. They can't bring a claim for unfair dismissal." And what I've noticed over the past three, four years is that employees are smarter. They have the ability to go online, as everybody else, and they're aware that well, I can't get an unfair dismissal claim in, but I think that I've been discriminated against. I think that I raised a health and safety problem and now I've been sacked for it, or I blew the whistle, something along those lines. They can bring those claims without needing to have the 52 weeks qualification period.
Scott: And also, some of those claims, discrimination, whistleblowing, there's no limit to the award that somebody can get. And you've no justification for saying, "Oh, I followed the fair procedure," if you just cut corners and don't follow the 1-2-3 procedures.
Seamus: Absolutely. And you can end up in a tribunal case that you're scratching your head about, thinking, "This employee was with me for six weeks." And there's some of the cases there where there's been a very short period, a very short period where the employee has been employed, and they're sitting, saying, "How did this happen?"
The reality is, if a claim gets in under those heads, the tribunal can look at the qualifying period and can also award the increase for the failure to follow the 1-2-3 process. So it's important to treat it, I think, as any other normal dismissal in terms of that. And that's certainly the advice that I'm giving to my clients.
More on Probation
- Employee Behaviour - What Standards of Behaviour can be Inferred into an Employment Contract?
- Probationary Periods - To Extend or to Dismiss? How Do I Handle It?
- Donaldson v Positive Futures 
- First Tuesday Q&A: Probationary Periods and Disciplinary Action
- Probationary Dismissal - What is the Procedure?
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