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Dismissing an Employee During the First 12 or 24 Months of Employment or Probation

Posted by on 14 January, 2013

This is a subject that is often over complicated by employment lawyers & HR professionals. The fact remains that unless an employee has attained the required number of months in employment to claim unfair dismissal then it is very easy to dismiss to dismiss.

For employees starting on or after April 6th 2012 they must attain 24 months continuous employment in the job before they can bring proceedings for unfair dismissal (save as for as outlined below). For employees who started before this date then they only require 12 months of continuous employment to qualify for full unfair dismissal rights.

So How to Dismiss An Employee Without the Required Period of Continuous Employment?

I recommend that you still follow the ACAS Code of Practice when disciplining employees or dismissing them. However this is just to ensure you are in the habit of doing it the right way. So long as you do not dismiss by reason of a ‘protected characteristic’ or because an employee has attempted to enforce a statutory right then the risk of losing an unfair dismissal claim is zero (but there is no accounting for spiteful and vexatious former employees).

There is still the risk of a wrongful dismissal claim, so we advise that you dismiss with the minimum contractual notice, and do not give any reasons for the dismissal. If however you are dismissing on the ground of gross misconduct and it is sufficiently serious to dismiss without payment of notice in lieu, then we advise that you still go through the disciplinary process.

For example, an employee has 6 months service and you have evidence that they are stealing. For a quiet life you could simply dismiss and pay the notice. However for many employers it will be quite galling if you have to pay them the notice pay. In this situation I would advise that you call a disciplinary hearing (no need to delays this call it for the next working day), suspend the employee (on pay unless the contract gives you the power to withhold pay), gather the evidence and move ahead and dismiss the following day without notice.

In most situations you should pay any holiday pay owed or outstanding pay. You can make deductions from any money owed to cover any theft ONLY if you have the contractual right to make such deductions.

Dismissing Employees Who Have the Required Time to Claim Unfair Dismissal or Pregnant, Disabled Employees

It is really is imperative that you follow the ACAS Code of Practice when dismissing these types of employees. If a claim is brought you will need to show that the reason for dismissal was fair or potentially fair and carrying out a proper disciplinary investigation and hearing will help establish this.

However I would recommend that you seek specific advice when dismissing employees who have the required service time to claim unfair dismissal, or pregnant & disabled employees.

Call now on 01482 345 905 to chat about this or any other employment law matter.

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