What steps should be taken to dismiss an employee who hasn’t completed their probationary period? Martin Brewer, partner and employment law specialist at Mills & Reeve, and Esther Smith, partner at Thomas Eggar, provide legal guidance.

The question:
We took on a new member of staff three months ago and have a six month probation period. Whilst she is very pleasant and enthusiastic, she is not displaying the competencies and skills needed to do her job. We have already pointed out to her that her work is not accurate enough and the number of complaints we have from our customers has increased significantly. We have given her extra guidance and increased supervision to help her to improve and understand her role, and have asked her if there is more help that she might need.

We have regretfully concluded that she is not up to the job and want to terminate her contract. Do we have to employ the disciplinary procedure in full or is it OK to simply give her contractual notice (one week during the first six months of employment)?

Kristina Parkin
Legal advice:

Esther Smith, partner, Thomas Eggar

As this employee has less than one year’s service she cannot bring an unfair dismissal claim based on the failure to follow either your own internal procedure or the statutory dismissal procedure in the event that her employment is terminated. Whilst technically the statutory provisions apply from day one of employment there is no remedy for an employee to enforce them unless they have protection against unfair dismissal which of course, for most purposes, they don’t until they have over one year’s service.

Therefore if you want to terminate her employment during her probationary period you can do so by simply providing her with her notice entitlement under her contract.

There is a risk that the employee may try to claim that her dismissal is automatically unfair for some protected right (for example if it is related to pregnancy or health and safety) or that there has been some form of discrimination against her which of course she can claim from day one of employment, but there is nothing in what you have said that suggests that this may be the case here. If there were such a risk of the employee making such a claim it may be advisable to go down the disciplinary route so that you can properly evidence the reasons for termination, but in this case there does not appear to be the need to do that.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar

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Martin Brewer, partner and employment law specialist, Mills and Reeve

Kristina, as this employee has less than one year’s continuous service she is not able to claim unfair dismissal unless she can bring herself within the excepted categories where no particular length of service is required. These include dismissals for pregnancy, health and safety reasons, making a protected disclosure etc.

If you are happy that none of these reasons could reasonably apply then the only thing left to consider is whether the employee could raise a discrimination claim. If not then it’s ok to go ahead and dismiss. In my view you should consider making a payment in lieu of notice unless there is any particular reason you want a disgruntled employee hanging around for a week.

As far as process is concerned since the employee cannot claim unfair dismissal there’s no need to follow any particular process. However, it’s always good to be consistent so if you did want to follow a process I suggest you stick to the statutory minimum procedure.

Martin can be contacted at: martin.brewer@mills-reeve.com

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