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Ask the expert: Sacking during a probation period


Ask the expertAn employee, who is currently within her three-month probation period, is not performing to a satisfactory standard. Esther Smith and Martin Brewer advise on the correct procedure to follow should the employer decide dismissal is the only option.

The question:

I work for a parent-run committee and just need a bit of advice. We employed a new member of staff who is currently on a three-month probation. She has had her first review, which highlighted some actions for her to do. We know she has not done some of these actions and we feel she is just going through the motions. We are having a chat with her tomorrow to see how she thinks things are going before we have her last review.

If, at her last review, we decide things are not working out due to whatever reason, and we decide to let her go, can we then just turn around and say: “Things are not working out so this is your month’s notice?”

Legally, do we need to follow any other procedure or is it okay just to do this? We do not want her to come back and say she has been unfairly dismissed.

Legal advice:

Esther Smith, partner, Thomas Eggar

Theoretically, the statutory dismissal procedures (which will be disappearing this year) apply to any dismissal irrespective of length of service. However, as the procedures can only be enforced through an unfair dismissal claim, for which, for most purposes, an employee needs a year’s service, there is not really any need to follow those procedures when dismissing during probation.

I would only suggest you adhere to any formal procedure if there were any concerns about a possible discrimination claim of some sort, or the employee trying to argue that her dismissal fell within one of the categories for which you do not need a year’s service. Nothing you say in your question suggests that this would be the case here.

Therefore I am completely comfortable in you confirming termination of employment at your next review meeting. It may be preferably to pay her in lieu of her notice period, or require her not to work, rather than having her around for that notice. She should also be paid in lieu of any holiday accrued but not taken. You should write to confirm the termination, and whilst she has no statutory right to written reasons for dismissal, if there is nothing discriminatory or questionable in your reasons for making the decision to dismiss, I would outline in brief detail the shortcomings and failings that have been identified with her during her probationary reviews.

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, Mills & Reeve

Unless she can access one of the special reasons for dismissal (these relate to things such as maternity, health and safety, asserting a statutory right) then this employee does not have the right to claim unfair dismissal until she has been employed for one year. So the short answer is ‘yes’, you can just give her notice and in the normal course of events she will not be able to claim unfair dismissal.

Martin Brewer can be contacted at . For further information, please visit Mills & Reeve.

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