Probation dismissal

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What is a Probation Period?

There is no such thing in law as a ‘probationary’ period. The probation period has no bearing on your legal rights. It is a term of your contract when you start a new job, and allows you to decide whether you like the role, and allows your employer to see whether you are suitable for the job. The probation period is only important because you would usually not have been working with your employer for two years and so would not have accrued the right to sue for unfair dismissal. This is what impacts on your rights, and not the fact that you are in a period of probation.

Resources available

  1. How to fight dismissal on Probation
  2. Disciplinary action and capability
  3. Discrimination at work
  4. Surviving a workplace suspension
  5. Social Media and Unfair Dismissal
  6. Surviving a disciplinary investigation at work
  7. Surviving Capability and Performance Management
  8. The Disciplinary Hearing
  9. DOCUMENTS, FORMS AND LETTER TEMPLATES

 

Employers are under the very mistaken impression that Employee’s can be treated unfairly because they are on probation. This is not the case. The right not to be unfairly dismissed is only ONE right. You have several more rights that if breached will give you the right to sue for compensation in an employment tribunal. These rights fall under seven categories;

1. Automatically Unfair Dismissal

As an employee, you have some unfair dismissal rights which exist regardless of how long you have been employed for. If your employer breaches any of these rights, you would have been automatically unfairly dismissed, and have the right to sue for unfair dismissal just as if you had two years service.

 

2. Statutory Rights

You have statutory rights that you accrue from day one of employment. If your employer breaches any of these rights you can sue for compensation in the Employment Tribunal.

 

3. Personal Injury

If you are unfortunate enough to be injured at work, you can make a Personal Injury claim for compensation. Stress at work which causes you to become ill is a personal injury. Accidents do happen in any job and in any situation. They are not limited to factories and building sites; every workplace has its own dangers. Your employer has a duty to protect you from injury at work and tell you about any health and safety issues that affect you. You can make a personal injury claim as part of a discrimination claim.

 

4. Health and Safety

Your employer is under a duty to take reasonable care of your health and safety at work. Your employer has to exercise due care and skill in four particular areas;

  • Provide competent staff
  • Provide adequate plant and equipment
  • Provide a safe system of work, and
  • Provide safe premises

If your employer breaches these obligations you will have a claim for compensation in the employment tribunal. You have these rights from day one of your employment, and you don’t need two years service. Note that bullying and harassment is also a health and safety concern because your employer has a duty to provide you with a safe place to work.

5. Discrimination

You are protected from discrimination at work under the Equality Act 2010. This protection extends to all aspects of your employment including dismissal, terms and conditions of employment, pay and benefits, promotion and transfer opportunities, training, recruitment and redundancy. There is no qualifying period of employment for a discrimination claim, so you don’t need to have worked for two years before submitting a claim for compensation to the Employment Tribunal.

 

6. Breach of Contract

Your employment contract is a document in which you and your employer agree on the work that you are going to do, how you will do it and when. Your employer agrees to pay you an amount of money in exchange for the agreed work. You have a number of rights given to you by statute, but the basic relationship between you and your employer is covered by the terms and conditions of the employment contract. Your employment contract also contains implied terms. The main one is the duty on your employer not to act in a way so as to breach the duty of mutual trust and confidence. You can take action for wrongful dismissal in the employment tribunal, county court or high court if your employer breaches the terms of your employment contract. Dismissing you without going through the right procedure would be a breach of contract if the disciplinary process is part of your employment contract. Invariably, if your employer dismisses you without going through due process it would be a breach of the duty of trust and confidence. You don’t need two years service to sue for wrongful dismissal. You have this right from day one of employment.

 

7. Whistleblowing

If you “blow the whistle” on your employer by making a protected disclosure, you have the legal right not to be dismissed, selected for redundancy or subjected to any other detriment. You don’t need two years service for this.

 

Dismissal whilst on probation

You have to be smart whilst on probation. Don’t be complacent and then get side-swiped by circumstances that you did not expect. If you have your wits about you, you can win. There are four main ways in which employers dismiss during probation;

 

  • The first is not to follow any procedure and simply terminate your employment and pay you in lieu of notice. Payment in lieu of notice is abbreviated to PILON. Here, you leave employment but you are paid for the notice period and any accrued benefits such as holiday pay.  If you don’t have any issues that fall in categories 1-7 above, then you don’t have a leg to stand on. If you do have issues that fall in the categories above, then start your claim by writing a Letter Before Claim and contacting the free ACAS Early Conciliation Service.

 

  • The second is not to follow any procedure and terminate your employment without paying you your accrued benefits or notice. Such an action would fall firmly into the breach of contract area, and there could be additional claims under categories 1-7 above. If you have been fired, start your claim by writing a Letter Before Claim and contacting the free ACAS Early Conciliation Service.

 

  • The third is where your employer opts to go through a procedure to dismiss you. Usually this procedure would be written into policy, and your employer would either go through the full procedure, or an abbreviated version because you are on probation. If any of the issues in categories 1-7 above are present you should immediately submit a grievance to initiate negotiations for a settlement agreement or an employment tribunal claim. If the grievance is unsuccessful, contact the free ACAS Early Conciliation Service.

 

  • The fourth is where you are promoted you or transferred to another job with a probation period. Your employer claims that you have failed that probation period and fires you. Here, if you have two years’ service, you can sue for unfair dismissal. If you don’t then check if the other situations described in categories 1-7 above apply to you. Start your claim by raising a grievance if you are still in the job. If you are not still in the job write a Letter Before Claim and contact the free ACAS Early Conciliation Service.

What you should do

Everyone will tell you that you have no hope if you are dismissed whilst on probation.  Many people give up because of this myth. If you don’t have a fortune to spend on legal advice then just use this guide. The guide explains the process you must use in simple terms so that you are clear on your rights and know exactly what to do if you are dismissed whilst on probation or are facing dismissal on probation. It goes through categories 1-6 above. It explains the relevant case law in simple language and maps out the steps to take with checklists, templates, strategies and tactics as well as extra resources to help you.

 

Your contract of employment exists from the time you accepted the offer of employment.  This means that the terms and conditions of your employment contract apply from the moment the contract comes into existence even if you have not received a written copy. If you are facing dismissal during your probation period the Employee Rescue Guide – How to Fight Dismissal on Probation, provides you with information on your legal rights during probation, tactics to help you keep your job and template letters to send to your employer. It also gives you information on the remedies available to you if you are dismissed during your probationary period. 

 

 

Disclaimer

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this publication.

Further specialist advice should be taken before relying on the contents of this publication. You can send an e-mail to thelawyers@employeerescue.co.uk for such specialist advice if required.
 

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