We have written before about how passing a probationary period doesn’t necessarily make an employee bulletproof. It’s true that an employee’s probation period is their opportunity to demonstrate their suitability for the role in terms of competence and commitment; and the employer should use the probation period to make this judgement. However, employee rights don’t accrue until two years service have been fulfilled, unless they have a protected characteristic.

This means that regardless of the outcome of the probationary period, the employer can still end employment without giving any reason to the employee. The trouble is, that’s neither ethical nor admirable.

We must remember that other than in some rare instances, employees should be granted dignity and respect. If a manager is making an arbitrary decision to dismiss an employee without any proper due cause or process, it’s more likely to be either a display of impatience, the consequence of their own laziness or a failure to follow some basic management principals.

There’s no legal obligation to use a probationary period but we always recommend that employers do use them and do so effectively. That means, deploy an effective induction programme during the probation period, hold regular meetings to ascertain performance and training needs and to ensure that the requirements of the company and the employee are being met. The probation should also be formally and officially signed off, or potentially extended where necessary.

It’s unlikely that an employee will fall off the rails in terms of performance or conduct, the day after they pass their probation. So if an employer or manager is looking to make an under two-year dismissal , the chances are the probation period wasn’t handled properly, or the ongoing development needs of the employee in the months following probation, simply weren’t met.

We’re not saying that there isn’t a place for a dismissal under two years. When redundancies are called for, those with under two-years service are going to be dismissible for the lowest cost. It may not always be desirable to get rid of the newest employees during a redundancy process, but the fact that no redundancy payment will be due is certainly going to be a consideration.

There are also the times when an employee does fall off the rails. Gross misconduct is a slam-dunk of course, but there may be times when they may become disgruntled or discontented. They may be overlooked for a promotion that they think they deserve perhaps, or they may just become bored with their job or not get on with another member of staff. Any of these scenarios, or others, could lead to a reduction in performance or productivity and a deterioration in attitude.

Despite the fact that a straightforward under two year dismissal is on the table, we would recommend that a proper disciplinary process is followed, even though it isn’t strictly necessary. Not only does this fulfil the unwritten duty to demonstrate the dignity and respect that we mentioned, but we’re also noticing that unless employees are ‘closed down’ properly, they tend to be quite noisy.

Claims of whistleblowing and discrimination, even when they are spurious, can be enough to trigger an interest from the likes of ACAS. And this will amount to a diversion of resources you can do without.

Completing a proper investigation and disciplinary process means that you can gather evidence and make a proper case as to why an employee should be sanctioned. It gives them the opportunity to make their case if they have one and, should things go as far as tribunal, demonstrates that you are an employer who takes their role and responsibilities seriously.

If you know your employees, you’ll be able to make the judgement when you should take the time to do a thorough process, but as usual, we’re always on hand to give advice or just our opinion. Call us on 01452 331331 or e-mail This email address is being protected from spambots. You need JavaScript enabled to view it.