Dismissal

Q I have an employee on a six months’ probationary period, but their performance so far has been poor. Can I get rid of them before the end of the probation period, and can I do it immediately?

A You can dismiss on grounds of poor performance (or, indeed, for conduct or attendance issues) during the probationary period. As the employee has less than two years’ service with you there is little prospect of a claim for unfair dismissal. However, there are legal claims they can make without two years’ service at an Employment Tribunal:

• Discrimination under the Equality Act 2010.
• Automatically unfair dismissal (for example, on grounds of pregnancy, health and safety or whistleblowing). or
• Wrongful dismissal for breach of contract if you do not provide the relevant notice period (one week in this case, unless the contract provided for longer in probation).

Apart from the legal position, there is the moral aspect for a responsible employer. All probationers should be told by the organisation what is expected of them and what support they will be given and time to improve.

Q  An employee who has been with the company for just over two years has been underperforming since they started but nothing was ever done about it. They do the absolute minimum of work and they have also become disruptive and are now affecting other employees. Is there any reason why I can’t just sack them?

A Yes! This employee has the two year qualifying service to claim unfair dismissal but you should not dismiss any employee without any warning whatever their shortcomings.  You must follow a fair procedure to defend a Tribunal Claim, even when you are sure the conduct is likely to be gross misconduct. This can be time consuming and frustrating for a manager who wishes to get rid of the problem as soon as possible and move on to their day job. However, taking shortcuts might be a false economy as the management time and legal costs in defending an employment tribunal claim of unfair dismissal can be even more demanding and expensive. It is worth spending time on the correct procedure. It also is your defence against any other tribunal claims which do not require two years’ service. 

Q I understand that dismissing an employee for poor performance or ill health can be a lengthy and frustrating process. Can I just use a settlement agreement?

A Yes it is possible. A settlement agreement is a legally binding agreement between the employer and an employee that settles any claims that the employee may have against this employer. It is usually used in connection with the ending of employment and is subject to strict rules, one of which is that the employee must receive independent legal advice. If the settlement does not meet the legal requirements, any discussion between the parties could end up as evidence in any legal proceedings that might follow.