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Ask the expert: Dismissal while on probation


Ask the expert

How do you dismiss an employee who is on probation, and on sick leave, but has been absent for several days without informing anyone, and is generally not up to the job? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills & Reeve, advise.

The question:

We have a chap who is currently on probation with us, who we are going to dismiss, but I need to know the best way forward for this.

He is currently on sick leave, but we have not heard from him for nine days now, we have no sick note from him and have not had anybody else call on his behalf; he has had a number of days off sick during his probation period. Generally he not up to this job, he struggles and is now costing the company money to put right his errors.

What I need to know is can we dismiss him while he is still on sick leave, or do we wait until he comes back to the office – but at this moment we have no idea when that will be?

Legal advice:

Esther Smith, partner, Thomas Eggar

You have a couple of options. Clearly as the employee has less than a year’s service there should be no risk of an unfair dismissal claim (assuming he cannot link the reasons for his dismissal to one of the protected rights).

Therefore the risk here is one of disability discrimination, given that he is off sick. Without receiving a medical certificate or any information from him it is difficult to assess whether or not he is likely to be covered by the legislation, but on the assumption that you are not aware of him suffering from any kind of condition that may bring him within the Disability Discrimination Act, and he has not got a history of sickness absence with you, the chances of him being covered I would have thought would be fairly low.

You could therefore take the risk of such a claim and simply write to him whilst he is off sick to confirm termination and payment in lieu of his contractual notice.

The other option, given that he has not been in touch, would be to write to him inviting him to a disciplinary hearing for an allegation of gross misconduct on the basis of his unauthorised absence and failure to adhere to company rules regarding notification.

If he doesn’t attend the disciplinary, you could hear it in his absence and make the decision to dismiss and write to confirm this. This route would save you the notice period as you could dismiss without notice or pay in lieu, but would obviously take some management time to deal with.

The first option is simpler but arguably slightly riskier from the disability angle. However if there was nothing to suggest that he may be covered by the disability legislation, I think I would probably take this route.

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 & Reeve

Assuming this employee doesn’t have 12 months service and there are no unusual circumstances, he doesn’t qualify to claim unfair dismissal.

This means that you don’t have to worry about acting in a way which meets the legal test of reasonableness, although many would argue that you ought to apply that standard irrespective of the length of service of any given member of staff because it is the right thing to do.

Is this person disabled? You say they are off sick but don’t give further details. If he isn’t disabled then simply ask him to attend a meeting to discuss his future and warn him you are considering terminating his employment for failing to meet the required standard of performance in the company.

Remember, just because a person is off sick and can’t carry out their duties, this a) doesn’t mean they can do nothing and b) certainly doesn’t mean they can’t attend meetings to discuss such an important matter. Many employees (and employers) think that having a sick note means that you can just ignore ‘work’ but that’s not the case.

Obviously, if the sickness is seriously incapacitating then the employee will not be able to attend a meeting, but otherwise they should attend and he should be reminded of his implied obligation to co-operate with you.

In the end, if you cannot get the employee to attend you can dismiss in his absence and dismiss whilst he is off sick. You have to be sure to tell the employee what’s happening and remember that notice, if given, is effective when the employee receives it, not when you send it.

If the employee does have 12 months’ service then you must follow the statutory minimum dismissal procedure, have a potentially fair reason for dismissal and dismissal must be reasonable in the circumstances. It’s not clear from your question why you want to dismiss – conduct, performance, sickness absence? The reason will affect the process so you would need to get this right first.

Clearly there are different considerations if the employee is or may be disabled and you should seek specific advice if that’s the case.

Martin Brewer is a partner at Mills & Reeve. Martin can be contacted at: [email protected]

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