As an employer, dismissing an employee is never easy, especially during their probationary period. You hired this new employee with the hope and intention that they would be a valuable addition to your team, but sometimes, it becomes clear in the early stages that it's just not the right fit, and their employment needs to end.
In such cases, dismissing an employee during their probationary period may be the best action for both parties.
Remember that if you do dismiss your employee before the end of their probation period, following a fair dismissal procedure will help you avoid potential discrimination claims.
Dismissal during the probationary period can be a challenging process, but with the right knowledge and understanding you can dismiss an employee without the fear of a discrimination claim.
In this article, we will explore the key aspects of dismissing an employee during the probationary period, including legal considerations, and best practices for a smooth and fair dismissal.
Understanding the probationary period
The probationary period is an important phase of the employment journey for you and your new employee.
During this period, employers can evaluate the employee's performance, skills, and overall fit into the job role and company culture. This phase also allows the employer and employee to assess whether the employment relationship is mutually beneficial.
A probationary period typically ranges from 3 to 6 months, although it can vary depending on your business needs and the nature of the position.
The employee rights during probation periods
Employees who are on probation have the right to a written statement, however, it’s best practice to also provide them with a written contract, regular feedback, a fair opportunity to improve, and clear guidelines on their probationary period.
Additionally, they have the right to receive:
- The national minimum wage
- Statutory sick pay
- Statutory annual leave
- Statutory notice period
- Protection from unlawful discrimination and automatically unfair dismissals
While you must provide them with statutory employment rights, you don't have to provide them with work-related benefits during the probationary period, such as bonus schemes, private healthcare, and life assurance.
Reasons for dismissal during probationary period
When you dismiss an employee and end your employee's contract during a probation period it's usually due to unacceptable progress, poor behaviour, or gross misconduct. However, you do not need to give a reason to dismiss an employee who is on probation.
In any case, it's important to keep in mind that if you do dismiss probationary employees you cannot dismiss their employment without notice.
The notice period during probation periods
An employee on probation will normally have a shorter notice period in their employment contract than an employee who has completed their probation. There are certain requirements for notice periods that you should know.
The statutory minimum notice period is one week, but only if your employee has worked for you for a month to two years. You can choose to give more if you want to, but you'll need to specify the amount in your employees' contracts of employment.
Wrongful dismissal and unfair dismissal during probationary periods
You might think that wrongful dismissal and unfair dismissal are the same thing, but they are in fact different.
What is wrongful dismissal?
A wrongful dismissal during a probation period would occur if you broke the terms stated in your employee's employment contract, for example not providing them with a notice period.
To prevent wrongful dismissal, it's crucial to adhere to the statutory notice period. It may also be beneficial to extend their probation period to further evaluate their capabilities.
What is unfair dismissal?
On the other hand, an unfair dismissal occurs when you have dismissed an employee without following a fair procedure and they can make an unfair dismissal claim to an employment tribunal.
However, a dismissed employee needs two years of continuous employment to claim unfair dismissal.
Because a probationary employee is usually on probation for six months, they can't make a claim unless they were dismissed due to automatically unfair reasons or if the dismissal was discriminatory.
Probationary employees are protected against unlawful discrimination and can bring their cases before an employment tribunal if they can prove discrimination played a role in the process.
So, it's important to make sure that you don't dismiss an employee on the grounds of discrimination against any protected characteristic outlined in the Employment Rights Act 1996.
Best practices for probationary period dismissal procedure
Implementing best practices that promote transparency, communication, and fairness can help you effectively navigate dismissal during the probationary period. This section will explore strategies to minimise the risk of unfair dismissal claims and foster a positive work environment.
Clearly define probationary periods
One of the keys to a successful dismissal during the employee's probationary period is to have a clearly defined probationary period in your employee's contract.
Having a well-defined probationary period in the employment contract sets expectations for your new employee and its best practice to have an employment contract and have employees sign this contract, acknowledging their understanding and agreement with the terms.
Just remember that legally you must provide them with a written statement of the terms and conditions of their employment.
Document performance issues
Before moving forward with a dismissal, you should gather documented evidence of poor performance or concerns. This documentation is good practice and can help justify your decision and protect your business from potential legal issues.
Performance issues could include various aspects of the employee's work, such as failing in their:
- Job duties
- Punctuality and attendance
- Communication and teamwork
- Adherence to policies and procedures
Be specific and objective in your documentation, avoiding personal opinions or judgments.
Consistent record-keeping during the probationary period can be invaluable in demonstrating to the employee that you have given them a fair chance to succeed in the role and have tried to address their shortcomings through constructive feedback and support.
Communication is key
It's important to maintain open and honest communication with the employee during their probationary period. If issues arise, address them promptly, and offer constructive feedback to help the employee improve. This not only allows them an opportunity to correct their course but also demonstrates a fair and supportive approach from the employer.
Regular feedback sessions can be a valuable tool during the probationary period. These meetings can provide a platform for the employer and employee to discuss their progress, challenges, and areas that need improvement. Open communication encourages a more transparent and constructive working relationship.
During feedback sessions, ensure that you provide clear, actionable feedback, and avoid using vague or subjective language. Be sure to document these discussions as part of your performance management documentation.
Consult your business policies
You should make sure that your decision to dismiss an employee aligns with your business's policies and dismissal procedures. Refer to your employee handbook or policy manual to confirm that you are following a fair procedure and the correct steps for dismissal.
Every business should have its own set of policies and procedures regarding employment, including probationary periods, notice periods and dismissals. Your business policies should provide guidance on the specific steps required for dismissal during the probationary period.
Offer a fair chance for improvement
Before making a final decision, consider whether the employee might benefit from additional support or training. Providing reasonable opportunities for improvement, with specific goals and a timeline, is a responsible approach. It shows that you value your employees' growth and are willing to invest in their success.
The probationary period should be seen as an opportunity for the employee to adapt to their role and the workplace culture. If poor performance arises, discuss it with the employee and mutually agree upon a plan for improvement which could include extending the original probationary period.
During this extended period, you should set clear and measurable goals, a timeline, and any necessary resources or training.
Supporting your employee's development demonstrates your commitment to helping them succeed. Be sure to document the improvement plan, including the agreed-upon actions and milestones.
Consult with HR and check legal rights
Employment laws provide certain protections even during the probation period. Before proceeding with the dismissal, it's best practice to consult with your Human Resources department or employment law experts to ensure that you are following all necessary legal requirements and minimising the risk of potential legal repercussions.
Probationary review meeting dismissal
Before making a final decision to dismiss an employee, you should discuss your concerns with them in a review meeting. This will give them a chance to explain their side, as there may be reasons you are not aware of.
During the meeting:
- Be respectful and empathetic
- Explain the reasons for the meeting clearly
- Remind them that they have the right to bring a colleague or trade union representative
- Provide the employee with any relevant documentation or evidence
- Address any questions or concerns they may have
- Allow them the opportunity to an appeal process
The probationary review meeting is a critical step in the process, and it requires tact and professionalism. It's often a challenging and emotional experience for the employee, so approach it with empathy and respect.
Handling post-dismissal actions
Once you have decided that dismissal is the best option make sure that it has been confirmed in writing and that all necessary paperwork is completed. You should also make sure that your employee receives their notice of termination, final pay and pay for any accrued but untaken holidays promptly, following legal and contractual rights.
If the dismissed employee, had access to sensitive data or company property, it’s important to take appropriate measures to secure these assets. This could include changing access codes or passwords to prevent unauthorised access. Additionally, arrangements should be made to collect any company-owned equipment, identification cards, keys, or any other items issued to the employee.
Review and learn
Finally, take the opportunity to review the dismissal process once it's complete. Assess what went well and what could be improved to enhance the way you handle dismissals in the future.
A post-dismissal review provides valuable insights into your business practices and may lead to process improvements. Consider these questions:
- Were there any unexpected challenges during the dismissal process?
- Did the employee receive adequate support and feedback during their probation period?
- Were all legal and contractual obligations met?
- Were there any issues with communication or documentation?
Reflecting on the dismissal process can make your business more efficient, fair, and considerate in future hiring and termination processes.
Get help with dismissal during probationary period with BrightHR
Dismissing an employee during a probation period is never easy but can be a necessary step to maintain a productive and harmonious work environment. Employers should approach this process with fairness, empathy, and adherence to the law.
Following the steps outlined above and maintaining open communication throughout the probationary period, can make a challenging situation more manageable for both you and the employee involved.
Remember that, in the long run, it's about finding the right fit for your team and fostering a positive workplace environment. Properly executed dismissals, even during probationary periods, can help your business maintain a healthy and productive work environment while respecting all employees.
BrightHR offers several time-saving and stress-relieving services to keep you on the right path for fair and smooth employee dismissals.
From a 24/7 employment law advice line available to answer any questions about dismissals or confusion of your employee’s rights to a huge document library with customisable policies, guidelines, and templates.
Learn more about how BrightHR can help you with all things dismissal and so much more, by booking your free demo.
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