Treatment of employees in probationary periods
It is a common misconception that probationary periods mean that you can terminate an employee’s contract with no risk.
This misconception often leads employers to not follow their usual employment procedures during probationary periods, thereby exposing them to a legal challenge – which could be costly to the employer.
Whilst it is correct that generally employees need to have worked for an employer for at least two years before they can take their employer to a tribunal, there are exceptions to this rule.
“Automatic unfair dismissal”
Employers should be aware that there are certain instances where an employee who is dismissed during their probationary period will not require two years’ service in order to bring a claim for unfair dismissal. In other words, these instances amount to an automatic unfair dismissal.
Dismissals linked to:
- discrimination (for example race discrimination);
- the employee raising a health and safety concern;
- the employee asserting a statutory right; or
- the employee being a trade union representative
all give rise to a potential claim and do not require the employee to have two years’ service.
An example of automatic unfair dismissal
A disabled employee who requires the use of a wheelchair is interviewed and appointed to a new job you have advertised.
On their first day in your organisation they arrive, and having been at work for an hour, ask you where the lavatories are. You advise the employee that they are on the 1st floor.
The employee asks where the lifts are since they are unable to use the stairs. You advise the employee that there is no lift and the stairs are the only way of getting to the lavatories.
Within just the space of an hour, your employee has grounds to take you to an employment tribunal for unfair dismissal. Your premises are not compliant with the Equality Act 2010 and you have not made ‘reasonable adjustments’ for the employee.
This is an example which demonstrates that not following procedures and policies required by law could result in significant legal bills to your organisation and cause damage to your reputation.
Even where the employer is confident that the reason for dismissing an employee in their probationary period, is unrelated to one of the above automatic unfair dismissal scenarios, it is advised that the employer still follow some procedure before dismissing that employee.
Following procedure will ensure that the employer is able to provide a paper trail setting out the employer’s reasons for terminating employment. This may help the employer in demonstrating the real reason for dismissal if the matter were challenged by the employee.
The Acas Code can provide practical guidance to employers on how to fairly carry out disciplinary procedures for misconduct or poor performance. It is advisable you consult this guide when implementing disciplinary procedures. Employment tribunals must take the Acas Code into account where relevant when considering whether an employer has acted reasonably or not (section 207, Trade Union and Labour Relations (Consolidation) Act 1992).
Furthermore, if the employee wins an unfair dismissal case the tribunal can adjust the amount of compensation by up to 25% either way, if either the employer or employee has unreasonably failed to comply with the Acas Code.
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