The vast majority of UK employers use probationary periods for new starters. They are an ideal tool for assessing an employee’s suitability for the role and their cultural fit with your business’s ethos, and identifying any specific areas of strength and weakness. What happens, though, if things do not work out during the probationary period? Can you sack someone on probation? And if so, how do you do it fairly and lawfully?
If you need advice on whether you can sack someone on probation or any other aspect of HR law and practice, the expert specialists at GAP HR are ideally placed to help. We offer pragmatic, business-focused advice at highly competitive rates, and we will ensure that your business reaches its commercial goals while remaining legally compliant.
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What Is A Probationary Period?
A probationary period is a trial period at the start of a new starter’s employment with your organisation. The purpose is to give both parties a chance to evaluate whether the employee is a good fit for the organisation and decide if the relationship should continue.
Probation periods usually last for between three and six months, but some employers operate longer periods for senior roles. Employers are not legally obliged to use probationary periods under employment legislation, but most do. Probation periods offer a perfect opportunity to evaluate the employee’s performance, attitude, and behaviour, and assess how well they fit in with your organisation’s culture and values.
Probation periods are most common in permanent contracts, but they also appear in fixed-term and part-time roles.
Can You Sack Someone On Probation?
Yes, you can sack someone on probation. However, employees on probation do still have some legal protection. Accordingly, it is vital that you follow a legally compliant dismissal procedure. Failing to do so can render you vulnerable to an employment tribunal claim.
How Do You Sack Someone On Probation?
You can sack someone on probation as long as your decision to do so is fair and lawful. Some of the issues of which you must be aware when considering whether you can sack someone on probation include the following:
• Unfair Dismissal
Employees only gain the legal right to claim unfair dismissal once they have two years’ continuous service. This means that in most cases, an employee on probation who has worked for you for less than two years cannot make a claim for unfair dismissal if you let them go.
However, and crucially, there are several exceptions where dismissing an employee on probation could still be considered automatically unfair or discriminatory. These include cases where the employee is dismissed for the following:
- Pregnancy or maternity reasons.
- Raising health and safety concerns.
- Whistleblowing.
- Exercising statutory rights, such as requesting flexible working.
- Discrimination based on a protected characteristic, such as age, race, sex, disability, religion, or sexual orientation.
If a dismissal falls under any of these categories, the employee may be able to make an employment tribunal claim against you from day one of their probationary period.
• Fair Reasons
Whenever you dismiss an employee, you must have a fair reason to do so, even if the employee is on probation. For a reason to be fair, it must be a genuine concern about the employee’s capabilities or conduct. Examples of the types of reasons that may be deemed fair include the following:
- Persistent lateness. An employee regularly turning up to work late without a good excuse can be a fair reason for dismissal.
- Persistent absenteeism. An employee’s regular absenteeism from work for no valid reason may justify dismissal.
- Performance issues. If an employee cannot do the job for which you employed them, you may be able to dismiss them fairly.
• Notice Periods
Even during probation, employees are entitled to statutory or contractual notice, whichever is greater.
- The statutory minimum is one week’s notice after one month’s continuous employment.
- However, the employee’s contracts of employment may specify shorter notice periods during probation. It is important to check the terms of the contract before taking any action.
Even if you have a fair reason for dismissing an employee during their probation, you must ensure that you give them the notice period to which they are entitled, either by statute or under their contract. If you fail to do so, they may have cause to bring tribunal proceedings against you.
In short, the answer to ‘can you sack someone on probation?’ is yes, provided you do so in line with employment legislation and the employee’s contract with your organisation. If you are in need of advice on your legal position in connection with dismissing someone during their probationary period, our leading HR consultants are ready and waiting to help.
Call us now on 01491 598 600 or Click Here to Make An Enquiry and we will be delighted to help you.
