The HR Forum

Hi All,

If someone is dismissed after their 6 month probation period and they believe it to be unfair however they were on probation do they have any right to protest or ask to have a say? 

What grounds to they have to stand on?

Thanks in advance 

Millz x

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Replies

  • https://twitter.com/daniel_barnett/status/694115656963334144

    Hi all

    Here is the link I referred to in my post below I think it is on a tweet.

    Thanks Sarah

    Daniel Barnett on Twitter
    “Podcast: Dismissal with Less than Two Years’ Service #ukemplaw https://t.co/GaTF6IjDTy”
  • Hi Millicent

    Great to see you have had so many replies to your query and I posted a lengthy reply on Sunday but for some reason it has not appeared here! So I will give it another go.

    Agree with everyone in terms of the right to claim unfair dimissal and the two years unless as everyone points out he has an automatically unfair reason to claim you can see the list here.

    https://www.peninsulagrouplimited.com/guides/automatically-unfair-d...

    In terms of wrongful dimissal and breach of contact, again agree with Emma you just need to ensure the correct notice was served and it the Company paid in lieu of notice it had the contractual right to do so.  In addition as others have pointed out if you do have a contractual disciplinary procedure then this should have been followed, in most cases however where a disciplinary procedure is contractual it will generally state that it does not apply to people with less than two years' service.  If it has not been followed worst case scenario is the employee claims damages arising as a result of the breach which in this case would simly be payment for however long it would have taken the employer to follow the disciplinary procedure so in reality around a weeks' pay.  In reality few employees will be aware of this techincal point.

    I also agree in terms of the sentiments about best practice however that said there are some instances when it comes to probationary period dismissals but rightly or wrongly some employers will choose to part company and simply call the employee to a meeting explain that is it not working out and then dismiss with the required notice, with no investigation and no right of appeal.  That said personally and I am a big fan of no surprises as it smooths the exit.  The ACAS Code of Practice applies in terms of the right to claim unfair dismisal and also means a 25% uplift applies in the event of a successful claim.

    There is a really good podcast which I have previossly posted on the HR Zone by Daniel Barnett called dismissals with less than two years' service which I recommend you have a listen to where he covers the above points, I posted this on my prevoius post and am now wondering if this was the reason my post did not work. If you send me your email address I willl send it to you.

    So in summary if you procedure was not contractual, the employer served the correct notice and there is no automatically unfair angle or discrimation angle then you should be OK.

    I hope this helps

    All the best

    Sarah

  • The only thing I would add here is to make sure he was terminated with the right notice. if he wasn't terminated before the expiry of his probation period but a few days later, he's technically passed probation by default. I believe that's correct? So just make sure he wasn't given one weeks notice when it should have been one month.


    Re unfair dismissal, I agree with what everyone else has said. He cannot claim unfair dismissal with less than two years service UNLESS he believes he was dismissed for asserting a statutory right or for something that could be deemed as discriminatory (protected characteristic).

    I think in this case if the employee just wasn't performing to a high level e.g. if he works in a sales role and not yet meeting target, he should have been managed correctly and/or dismissed way before the end of the probation period. 

    Was there reasons given to him for the termination or no reason just issued notice?


    Emma

  • Hi Millz,

    I agree with Peter Pack here :

    Not telling a person what their role is and then dismissing them for not carrying it out smacks of really poor management, training and induction processes.  

    In reality, this should not come as a bolt out of the blue if the employee has not been performing as expected but as Peter has pointed out, this is poor management as this should have been picked up much earlier with the employee to at least give them an opportunity to rectify the alleged issues.

    Just my thoughts

    Clare

  • Hi Millz,

    A person cannot normally claim for unfair dismissal unless they have been employed for two years unless the reason for the dismissal is classed as automatically unfair - there is a long list of reasons the dismissal may fit this category which can be found on the ACAS website.  Do you have a disciplinary procedure and have you followed it?  If the disciplinary procedure is contractual and you have not followed it (or any other terms of your contract) then you could be in breach of contract which again does not have the two year service requirement to bring a claim for wrongful dismissal. 

    Why does the person think the dismissal is unfair?  Were they aware of issues prior to their dismissal and what have you to lose by allowing them to have their say?  Whilst the dismissal may not be unfair in legal terms the person may feel like they been treated unfairly. 

    Pete

  • Thanks so much for the info Chrissy.

    The candidate was on holiday when the probation period came to end. Should there not have been some sort of advice on things he was doing wrong in order to correct it before it got to a point when they let him go with no chance to explain his side? He feels it was an unfair dismissal as he was told it was on the terms " he had not done a lot of things that need to be done". However he was not aware of this as none gave him this feedback during his probation.

    So is he entitled to request a investigation? How would he go about that?

    Many thankssssssssss

     

    • That does seem unfair, though not in the legal sense unfortunately. Ideally an employer would give an employee the chance to improve their performance- even during their probation period- either by speaking to them informally or through a capability process, but not all employers will do that sadly. Legally an employee with less than two years service can be dismissed more quickly and easily than employees of over two years, and with less reason- so they didn't need to raise the issues with him before he was dismissed.

      The thing I would check is whether or not they followed a) their own disciplinary procedure and b) the ACAS code of practice. I think (though can't say for absolutely certain) that in any case of dismissal (during probation or otherwise) an employee is legally entitled to be invited to a fair disciplinary hearing (to which they have the legal right to be accompanied by a colleague or union rep), and they have the legal right to appeal the decision- whether it be a written warning, dismissal etc.

      Speak to ACAS/Citizens Advise as to whether this procedure applies during probation periods and if it does and the employer has not followed this procedure then he may have grounds for tribunal- again ACAS should be able to advice on that. You can also go through Early Conciliation with ACAS.

      I would suggest considering what he wants to get out of an appeal/tribunal and whether it's worth the time, cost and potential stress. If he feels very strongly about it and if it looks like he's got a strong case then go for it. However, if he decides not to go down the formal route then I would definitely do as Pete suggests and write a letter to the MD/HR dept. explaining his feelings and how they could have acted better.

      Out of interest, what size company is it? 

      Chrissy

    • Hi Millz

      Apologies only saw the previous reply when my screen updated after posting my reply.  I can fully understand why he thinks it's unfair.  Although I do not believe he has a legal right to be heard he has nothing to lose by sending a letter to the MD appealing against his dismissal and requesting an investigation into his treatment.  Even if he does not get an appeal it will raise the issue at the highest level within the business and hopefully save others meeting a similar fate.  Not telling a person what their role is and then dismissing them for not carrying it out smacks of really poor management, training and induction processes.  

      Pete

  • Hi Millz,

    You say 'after their 6 month probation', but also 'they were on probation'- were they dismissed during their probation or after their probation ended? Can you shed any more light on the situation- why were they dismissed? Are they claiming it was unfair?

    An employee can't claim Unfair Dismissal unless they've been employed for 2 years (except under certain circumstances- where there is clear discrimination for example). However,  when dismissing an employee- even if during their probation period- you should follow the ACAS procedure of conducting a disciplinary hearing/investigation and allowing the employee the right to appeal the decision. If you didn't follow this procedure when you should have done it might mean that the employee could take you to tribunal.

    The ACAS and Gov.uk websites have some really helpful information. ACAS also has a helpline if you want to speak to someone. 

    Do you have a Disciplinary policy? If so, have you followed it in this case? 

    Chrissy

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