Some employees, who are on probation, are not performing well and the employer wants to dismiss them. Matthew Whelan and Esther Smith advise on the correct procedure to follow.
The question
I have a couple of probationers who are not shaping up. They have been spoken to and one has not changed his attitude at all. Do I have to follow the same disciplinary procedure for dismissing probationers as permanent employees?
Legal advice
Matthew Whelan, solicitor, Speechly Bircham
Probationers have no different legal status to an employee who is not subject to a probationary period and therefore do not generally have any different rights. Sometimes employees have shorter notice periods during a probationary period, which is legitimate as long as this observes the statutory minimum period. Probationary periods are often used as a trigger to review performance at the early stages of employment.
In all cases of disciplinary action by virtue of misconduct or poor performance, including dismissal, you should follow the ACAS Code of Practice. If you do not and the employee succeeds in bringing certain claims against you (including unfair dismissal, breach of contract and discrimination) then any compensation may be increased by up to 25% because of the failure to follow the procedure. Therefore the risk in not following the procedure is lower in the absence of such claims – for example if the employee has under one year’s service and there is no claim for discrimination or special case of unfair dismissal in relation to which you do not need one year’s service, such as whistleblowing.
There is always a risk in not following any procedure. The absence of any procedure can be used to support an argument of discrimination and also does not give you the opportunity to ascertain from the employee if there are any issues which may increase the risk of such claims or explain the poor performance.
You should check whether the disciplinary procedure is stated to apply during the probationary period. If it is there will be an expectation although an employee will still only be able to rely on this if the procedure is contractual.
Matthew Whelan can be contacted at [email protected]. For further information, please visit www.speechlys.com.
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Esther Smith, partner, Thomas Eggar
I assume that both the probationers have less than a year’s service. As such they have no protection against unfair dismissal for normal purposes, and therefore arguably there is no need to follow a disciplinary procedure if dismissing them as they cannot challenge the fairness of the dismissal (which would include consideration of both the reasons and the process followed).
However, all employees irrespective of length of service have protection against discrimination and if there is any scope for the employee in question to try to argue some form of discrimination, it may be prudent to follow the disciplinary procedure, if only to protect against spurious discrimination claims. The question of whether it is worth the time and effort in dealing with the dismissal as a formal process will depend on the individual circumstances of the case, the nature of the issues you are dealing with and the employee in question.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visitwww.thomaseggar.com.
