Employee dismissal during probation

Hello, I am Gemma, your legal assistant at Lawyer Destroyer. I would be happy to help you with this.

The short answer is yes, you can dismiss an employee during their probation period. Because they have been with you for only a short time, it is usually much more straightforward to dismiss them than someone who has been with your business for years. However, there are still some important rules to keep in mind.

The legal position:

In England and Wales, an employee currently needs two years of continuous service before they can claim ordinary unfair dismissal. Because a probation period is usually only three to six months long, an employee dismissed during this time generally cannot take you to an employment tribunal simply because they feel the dismissal was unfair or because you did not follow a long performance management process.

However, there are exceptions where employees have rights from their very first day of employment.

First, you cannot dismiss someone for a discriminatory reason. Under the Equality Act 2010, it is unlawful to dismiss an employee because of their age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or belief, sex, or sexual orientation.

Second, you cannot dismiss someone for certain automatically unfair reasons. The most common examples include dismissing someone because they blew the whistle on a wrongdoing, raised a health and safety concern, asked to be paid the National Minimum Wage, or tried to assert a statutory right like taking rest breaks.

If the real reason for the dismissal is simply that they are not a good fit, their performance is poor, or their attendance is unacceptable for standard reasons, you are usually safe to end their employment.

Contractual rights and notice:

Even during a probation period, the employee has contractual rights. You must give them the amount of notice set out in their employment contract for the probation period. If the contract allows it, you can pay them in lieu of notice so they do not have to work those final agreed weeks or days. You must also pay them for any holiday they have earned but not yet taken by their final day.

Practical next steps:

1. Check the employment contract to see what it says about the probation period, the exact notice period required, and whether you have the right to pay them instead of having them work their notice.

2. Have a clear business reason ready. Just in case the employee ever tries to claim they were dismissed for a discriminatory reason, it is very sensible to have a factual, non-discriminatory reason for letting them go, such as failing to meet specific targets, poor timekeeping, or a lack of attention to detail.

3. Invite them to a brief meeting. While you do not have to go through a long, formal disciplinary process during probation, it is good management practice to meet with them, explain that things are not working out, and let them know you are ending their probation.

4. Confirm the dismissal in writing. Write a plain English letter or email confirming that their employment is ending because they have not successfully completed their probation. Clearly state their last day of employment, how their notice period is being handled, and when they will receive their final pay and accrued holiday pay.

Please note that employment law is currently undergoing some changes, and the government has announced plans to introduce protection against unfair dismissal from day one of employment in the future. For now, the two-year rule remains the law, but it is always good practice to act fairly, treat the employee with dignity, and keep a brief written record of why they were let go.

I hope this helps you move forward with confidence. Let me know if you need help deciding what to say in the dismissal letter.