Myth-Busting Probationary Periods
Alan Kitto
It’s fairly common in most employment contracts for the first few months of a new starter’s employment to be a probationary period, the premise being that if the employee’s conduct or performance doesn't meet the required standard within this period, their employment can be terminated, or the probationary period extended.
Whilst probationary periods are widely used, there is no provision within employment law for them.
There are five potentially fair reasons for dismissing an employee, these are:
Misconduct (Behaviour below the standard expected)
Capability (Unable to carry out the role, or excessive absence)
Redundancy (No longer needed due to downturn in workload)
A Statutory Restriction
Some Other Substantial Reason
Where an employer dismisses an employee without a potentially fair reason, any resulting dismissal will be deemed an unfair dismissal. In addition, where an employer dismisses on the grounds of misconduct, capability or redundancy, and does’t follow the required process for these, the resulting dismissal will also be unfair.
Also an employer chooses the wrong reason to dismiss an employee, perhaps where they dismiss for misconduct when it should be capability or redundancy when it should be some other substantial reason, the resulting dismissal will still be unfair.
Whilst an employee may fail their probationary period for reasons of misconduct or capability, generally they will be dismissed without process, making the dismissal unfair.
Notwithstanding the above, generally speaking employees need two years completed continuous employment to be able to bring an unfair dismissal claim and because probationary periods are generally three or six months, an employee would rarely have the necessary service to bring a legal claim against the employer in relation to their dismissal, providing the employee has been paid their notice entitlement, the National Minimum (or Living) Wage and for accrued holidays.
However, there are a number of exceptions to the two year service rule, that allow employees to bring claims for unfair dismissal (or constructive unfair dismissal) without two years service. Where one of these exceptions apply, a probationary dismissal, without due process, will be unfair and will likely give rise to a claim.
The typical exceptions are:
Where discrimination is the ‘real’ reason for the dismissal (dismissing someone for excessive absence relating to a medical condition that meets the definition of being a disability could be disability discrimination)
Where an employee has raised serious concerns about health, safety and welfare or has refused to carry out duties that they reasonably believe to present serious and imminent danger to them
Where an employee has made a protected disclosure under whistleblowing legislation
Where an employee has exercised a statutory right (i.e to be paid the National Minimum Wage or to the statutory minimum number of days holiday
Where the employee’s trade union membership or duties as a trade union official is the ‘real’ reason for the dismissal
In these circumstances, due process is always required, irrespective of length of service, for any dismissal to be fair and for any resulting claim to be able to be defended.
We always advise our clients to discuss probationary dismissals with us before any decisions are made so that we can rule out any of the above exceptions and thus not leave them exposed to litigation.
For more information on this and any other HR matter, please get in touch.