Dismissing Within Two Years

So you’ve got an employee with less than two years’ service and things aren’t working out and you want to dismiss them. Just a straight forward case of calling them into a meeting and letting them go right? Well, not always.

We’re used to referring to employees with less than two years’ service as having accrued no employment rights, but situations aren’t always that straight forward and you may need to consider best practice as well as what is and what isn’t permissible by law.

Has the employee passed their probation period? Probation isn’t a necessity in law but if you use it, and we recommend that you do, you should consider why you’re getting rid of someone if they have proved their capability. Has there been a lack of training that has led to underperformance, or are they now under-challenged and bored? Take a look at your own potential failings before simply putting the blame on the employee or you’ll just be facing the same issues with his or her replacement.

Does the employee have any protected characteristics? Of course this shouldn’t be an issue if you have managed them properly and you have a genuine underperformer who needs to go. But don’t let it become an issue or something that can be used against you, especially if the protected characteristic, for example the employee’s sexuality or a disability, has only come to light some time after their employment has started. The burden of proof will be on you to show that the person in question was dealt with exactly as any other employee would have been dealt with.

How close is the employee to his or her full two years? If their notice period takes them over or dangerously close to their full two years, their dismissal may be seen as unfair by a Tribunal if the dismissal was appealed or challenged. If there are genuine capability or behavioural issues, why haven’t they been dealt with before instead of leaving matters to the last minute?

We fully support businesses in the decisions they need to make to ensure that the organisation thrives. We’re also very conscious however that the wrong decision can expose a company to unnecessary risk, so it’s worth taking a step back and reflecting on some of those decisions that can have a nasty habit of tripping you up, before you make them.
If you’re faced with a decision like this one, a phone call to our help line on 01452 331331 could be cheap way of putting your mind at ease and making sure you’re not exposing your company to any risk.

19 January 2018, 14:34