Category Archives: probation period

Dismissing Staff with Less Than Two Years Service

I am often asked by clients about dismissing a member of staff with less than two years service. It is good to check as whilst this may seem relatively straightforward there are a few things to bear in mind before proceeding. Caution is recommended along with the necessity for an employer to show reasonableness.

poor performance

Under two years service an employee does not have the right to claim unfair dismissal. This may lead an employer to think they are protected from an employment tribunal claim. However, this is not necessarily so depending on the circumstances that have lead the employer to consider dismissal after a short period of service.

Often the employee has not performed particularly well since starting employment. As a cost is usually attached to recruitment a wise employer should put in place a structured probation monitoring period where regular documented meetings take place to discuss with the employee progress that is being made and whether any support and/or training is required. This shows investment in the new employee and can boost their morale encouraging good performance. If an employer ignores this due process, as many do, it can lead to under performance that may impact detrimentally on the business including colleagues.

In my experience some employers can ignore the situation hoping things will get better until they consider enough is enough. It the situation is allowed to drift on until almost two years is up the period of notice needs to be considered which may launch the situation into a possible unfair dismissal situation if not carried out properly.

It is always best to tackle poor performance in a probation period as quickly as possible and not ignore the situation. The reason for the underlying under-performance should be considered. It may be that a disability is impacting on the situation which needs to be tackled very carefully looking at ways things can be improved via reasonable adjustments. An early discussion with the employee is recommended and consideration to an occupational health advisor may be needed.

For poor performance that is tackled early and where there is no improvement it should be possible to invite the employee to a meeting to discuss their under performance and the need to dismiss them from their employment. Whilst there not be a need to put a formal structured process in place as is required if the employee has over two years service best practice would be to send a meeting invite letter and give the right to be accompanied by a trade union representative or a work colleague.

At the meeting iIf documented meetings have taken place during the probation period these can be referred to. The meeting should be followed up in writing confirming the outcome should dismissal be required, giving details about the termination including P45 provision. I usually recommend that the employee is given the right to appeal.

Under performance or capability is a fair reason for dismissal. Other reasons may include conduct, redundancy, breach of statutory provision or some other substantial reason.

In certain circumstances the dismissal may be classed as automatically unfair. This can include reasons related to pregnancy/maternity, asserting a statutory right such as taking annual leave or the right to the minimum wage, health and safety concerns, whistleblowing and any form of discrimination, If an employee is dismissed due to a protected characteristic which include include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation as detailed in the Equality Act 2010 this is automatically unlawful. 

In any case the decision to dimiss should not be taken lightly and every effort should be made to try and get the employee up to speed as quickly as possible and certainly not leave it until almost their two years of service is up.

Additional information on dismissing staff with under two years service can be found at

Rise of the Unfair Dimissal Qualifying Period

On 6 April 2012 the qualifying period for unfair dismissal claims rises from one to two years. The change will only affect new employees whose employment starts on or after April 6 2012. Those employees already in employment will retain the current qualifying period of one year. The change will not affect automatic unfair dismissal claims.

The new timeframe to terminate employment of an employee, if they are not performing to standards, will be one year and 51 weeks.  For employees commencing employment before 6 April 2012 it remains before the 51 week mark.  This is because an employee is entitled to include their one weeks’ statutory notice period in their length of service, to obtain the requisite period of service to entitle them to bring an unfair dismissal claim.  However if an employment contract specifies longer notice than the statutory then termination should be considered many weeks, or months, beforehand.  For example if an employee employed after 6 April has one month’s notice specified in the contract, dismissal should be considered at the 22.5 month stage (or 10.5 months stage for those employed before 6 April). However, in my opinion an employer should not wait until the qualifying period is looming to terminate a badly performing new employee. 

Employers need to use probationary periods effectively to monitor and test new employees picking up quickly on any issues of poor performance providing an opportunity to improve.  Furthermore employers should diarise the cut-off points for continuous service to ensure employees do not attain the requisite qualifying period.  A fair procedure should be adopted when terminating employment including maintaining the paper trail.  Furthermore employers should be vigilant with how they manage employees to avoid possible discrimination as there is no qualifying period to bring an employment tribunal claim for that. 

The introduction of the higher qualifying period is part of the government’s drive to promote employment and to give employers the chance to try out new recruits without fear of unfair dismissal claim.  Time will tell whether this employment reform will assist businesses and boost economic recovery.