All employers are reminded that regardless of the justification surrounding a dismissal, if fair procedures are not followed an employee will most likely succeed in an unfair dismissal claim. Fair procedures are therefore key when considering dismissing an employee and can save an employer a lot of time and costs if followed. However, fair procedures differ in different situations and therefore this article is the first in a series which will set out tips and potential pitfalls in procedures when dismissing – during a probationary period; based on performance issues; based on incapacity, based on misconduct, redundancy and retirement. This article will address dismissal during the probationary period.
Generally, the probationary period does not require fair procedures to be followed in dismissing an employee. However, an employer can still be subject to a claim if not careful on certain points.
The first consideration is to ensure there is a probationary period clause in the employment contract and that such a clause allows the employer to dismiss the employee at any time during this period. The High Court has granted an injunction to an employee who was dismissed a couple of days after the completion of the probationary period due to the bad drafting of the probationary period clause. This meant that the employer was prevented from dismissing the employee and was forced to either reach a settlement or have the employee return to work.
A probationary period needs to be long enough to allow the employer assess the employee but should be less than a year. When calculating a year’s service the notice period should be included even when it is paid in lieu. Once an employee has one year service he/she gets the protection of the Unfair Dismissals Acts and cannot be dismissed without fair procedures being followed. Ideally, a probationary period should be for 6 months with the employer reserving the right to extend the probationary period if necessary to less than a year. The notice entitlement should also be limited to one week during the probationary period for both parties.
As the probationary period is usually insufficient to get the protection of the Unfair Dismissals Acts, the only concerns for an employer dismissing during this period is either a claim to the Equality Tribunal under the Employment Equality Acts or to the courts for a wrongful dismissal or breach of contract.
Once the employer stays within the parameters of the probationary clause when dismissing the employee and does not get into the reasoning i.e. does not ‘dismiss for cause’, there should not be any concern of a wrongful dismissal or breach of contract claim. However, if it is a director who is being dismissed, the employer must ensure that it follows the company’s memorandum and articles of association even during the probationary period.
An employer dismissing an employee during probation should simply tell the employee that it isn’t working out and not get into the details. The employee should be informed whether he/she is required to work the notice period or is being paid in lieu. However, if the employee in question can argue one of the 9 grounds of discrimination under the Employment Equality Acts then a reason should be set out to illustrate that it has nothing to do with discrimination. In that regard, employers should be mindful of the 9 discriminatory grounds being race/place of origin, age, gender, family status, civil status, religion, sexual orientation, disability and membership of the Travelling Community.
Issues that frequently arise is where an employee is on protected leave or sick leave during the probationary period. In these situations, an employer should write to the employee notifying him/her that the probationary period is extended. However, regardless of the leave, once the employee has one year service, the benefit of the probationary period is lost as the Unfair Dismissals Acts will apply to the dismissal and will require fair procedures to be followed.