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Dismissal on probation


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From 6th April 2020 the Written Statement of Employment Particulars must contain details of any probationary period, including conditions applicable to it and its duration. The probationary period is defined as a temporary period specified in the contract of employment or other workers contract between a worker and an employer that commences at the beginning of employment and is intended to enable the employer to assess the worker’s suitability for the employment. [ERA 1996, section 1(4)(ga) & 1(6)]

What is a probation period?

Dismissal on probation is difficult for a normal unfair dismissal claim because you would not have accrued the two years necessary for a claim in the employment tribunal. It is the fact that you would usually not have been working with your employer for two years that impacts on your right to sue for unfair dismissal, and not the fact that you are in a period of probation.

You may have reduced workplace benefits such as sick and holiday pay or entitlement to notice during your probationary period. Other than this, the  ‘probationer’ label has almost no effect on the employment relationship.There is no such thing in law as a ‘probationary’ period. The probation period has no bearing on your legal rights and you have access to statutory rights in the same way as any other employee. Under s203(1) Employment Rights Act 1996 (ERA 1996) you generally cannot contract out of your legal protection.

Probation 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. There is no automatic or implied term in a contract for a probationary period so it must be expressly stated in your employment contract. Your employer cannot impose a probationary period if your contract does not say that there is one. So that is the first thing you should look out for. Is there a probationary clause in your contract? If there is, then case law has determined that this implies a promise of positive help and guidance to help you achieve the expected standard.

For more detailed guidance, see How to fight Dismissal on Probation: Legal rights, templates and strategies


Duration, extension and confirmation

Although there is no legal provision which regulates the length of a probation period, the law expects a reasonable duration of between 3-6 months, depending on the requirements of the role.

Your probation period can only be extended if this is provided for in your employment contract. If there is no provision for extending it, then your probation period will end when it says that it will end in your contract. Your employer does not have an implied right to extend your probationary period (see Przybylska v Modus Telecom Ltd [2007]). The exception to this is if you and your employer mutually agree to extend your probation period. You may not have much of a choice in this since it may be presented as an “agree or be dismissed” ultimatum.


A new probation period whilst already employed

A new probation period may be imposed where you are already working for that employer, and have been asked to enter into a new contract, perhaps because you have been promoted or there is a transfer of undertaking of some sort. If you are dismissed during this period and you have two years continuous service you will be able to sue for unfair dismissal. If you do not have two years service then the information on this page will apply.

In the case of a TUPE transfer, the circumstances in which continuity between periods of employment by different employers can arise are set out in s218 ERA 1996. That section provides that when a trade or business, or an undertaking is transferred from one person to another the period of employment of an employee in the trade or business or undertaking at the time of the transfer counts as a period of employment with the new employer, and the transfer does not break the continuity of the period of employment.


What the courts have said about probationary periods

Post Office v Mughal[1977] – employers must be able to show that they took reasonable steps to appraise the employee on probation and that they made honest efforts to determine suitability.

White v London Transport Executive [1981] – there is an implied term in the contracts of employment of probationary employees imposing an obligation on the employer to take reasonable steps to maintain an appraisal of a probationer during a trial period, giving guidance by advice or warning where necessary.

Cornell (Lynne) v Revenue and Customs Comrs [2009] – if an employee is placed on garden leave before the end of their probation period and subsequently dismissed without having been formally confirmed in post, they have nevertheless passed their probation period.

N v Lewisham London Borough Council [2009] – as a probationer often has different terms and conditions, status and benefits, the extension of an employee’s probationary period of employment is generally a detriment.

Millbank Financial Services v Crawford [2013] – an employee who complained to her employer about the extension of her probationary period, asserting that there had been no feedback during the probationary period, no consultation with the person recruited to carry out the HR function, no consultation with the director and just a single meeting at the end of the probation period with no plan of action and no idea how long the probation period would last, was held to have made a protected disclosure (whistleblowing).


Employers methods of dismissal

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;

A. 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 the categories below, 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 raising a Grievance . If you have already been dismissed, write a Letter Before Claim and contact the free ACAS Early Conciliation Service.

B. 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 the categories below. If you have already been fired, start your claim by writing a Letter Before Claim and contact the free ACAS Early Conciliation Service.

C. 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 you do have issues that fall in the categories below, then start your claim by raising a Grievance . If your grievance is not upheld, appeal it and contact the free ACAS Early Conciliation Service.

D. Where you are promoted 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 normal unfair dismissal. If you don’t, then check if the other situations described in the categories below apply to you. If you do have issues that fall in the categories above, then start your claim by raising a Grievance . If you have already been dismissed, write a Letter Before Claim and contact the free ACAS Early Conciliation Service.


Automatically unfair dismissal

There are circumstances where a minimum qualifying period does not apply. This includes discrimination, whistleblowing or assertion of a statutory right such as bringing a grievance. 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. [see Automatically Unfair reasons for Dismissal]

Note in all cases that the time limit for your employment tribunal claim is 3 months less one day from the date you were dismissed. If the time limit is getting closer without your appeal or grievance having been heard, you must still contact ACAS.

These rights fall under the following categories;


1. 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.


2. Personal Injury

If you are unfortunate enough to be injured at work, you can make a Personal Injury claim for compensation.  Personal injuries include mental and psychological injury, not just physical injury. 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. [see How to win your personal injury claim at work]


3. 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. [see Automatically Unfair dismissal – Health and safetyHow to fight a Health and safety dismissal, How to write a grievance about bullying and harassment at work]


4. 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. [see How to write a grievance about discrimination at work, How to use the ACAS questions procedure for discrimination claims]


5. 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. [see Whistleblowing]


Wrongful dismissal

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. [see Wrongful Dismissal, Employment Tribunal claim template for Breach of Contract]


What you must do

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, leave with dignity or get compensation. It includes template letters to send to your employer and information about the different types of claim you can make if you are dismissed during your probationary period.

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 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.


Updated: 08/03/2020


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