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Dismissal during probationary period: The legalities

Reading time: 3 mins

Charlotte Todd, April 13, 2020

Being dismissed from work can be an extremely worrying and stressful time for you and your family, especially if you don’t have any other source of income.

There are several different ways an employer can dismiss an employee if they act fairly and reasonably towards the employee they are dismissing – but do these same grounds for dismissal apply if you’re still in your probationary period?

When can an employee on a probationary period be dismissed?

Unlike employees who have passed their probationary period, employers can dismiss employees before the end of their probationary period if they have committed gross misconduct or their attendance levels have affected their ability to do their job.

An employee can also be dismissed if their performance throughout the probationary period has been unsatisfactory and this can be evidenced through KPIs that have not been achieved or against the job specification issued to them on commencement of employment. 

What are an employee’s rights when being dismissed during their probationary period?

For employees who are still within their probationary period, it is best practice for employers to undertake regular reviews to discuss any issues either party is experiencing, including those mentioned above.

Citizens Advice advises that, if an employer chooses to terminate an employee’s contract while they are still on probation, the employee is entitled to ask for an extension to their probationary period – but this doesn’t necessarily have to be granted.

When dismissing an employee on probation, the reviewing manager should meet with the employee to clearly outline the valid reason for dismissal and provide evidence as to why that decision has been reached.

The employer should then outline the decision in writing to the employee, providing information on the notice period that the employee is required to work. The notice period required for the employee to fulfil should be outlined in their contract of employment.

If no notice period has been set out, according to Acas, employees are still entitled to a statutory notice period of one week if they have been in employment for one month or more.

According to the government, an employer must treat all employees equally throughout the dismissal process. This means that if you are a part-time or fixed-term worker, you can’t be treated less favourably than a full-time or permanent employee.

Can employees on a probationary period claim unfair dismissal?

Employees who are still in their probationary period are typically not able to claim unfair dismissal. This is because only workers who have been employed continuously at a company for two years can claim unfair dismissal, provided there has been no discrimination involved in the dismissal process.

However, you could be able to claim wrongful dismissal. This is because this relates to the terms of your contract. If these are breached, you could claim that you were wrongfully dismissed. For example, if you were dismissed without a notice period or with less notice than is stipulated in your employment contract, you could have been wrongfully dismissed.

What to do if you think you have been unfairly dismissed?

If you think you have been wrongfully dismissed while in your probationary period, a specialist solicitor can provide advice and guidance.

To find out how First4Lawyers can help you find an employment lawyer, just give us a call, request a call back or make an enquiry online.

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