How to safely dismiss short-service staff
Written by Alexandra Farmer on 1 November 2023
Employee dismissal is one of the more challenging parts of managing a workforce. However, the degree of difficulty employers face in these situations can vary, not least because the level of legal protection an employee has in the event of dismissal is often tied to their length of service.
While long-serving employees are protected by various employment laws, short-service employees, usually those with less than two years’ service, have far fewer rights. They cannot, for example, bring claims for ordinary unfair dismissal.
This doesn’t, however, mean employers have carte blanche to terminate short-service employees without consequences, as they may still have certain legal avenues available to them, such as claims related to discrimination or automatically unfair dismissal.
In this blog, we will explain how to dismiss short-service staff the right way, focusing on three common reasons for dismissal: performance, conduct, and absence.
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Dismissing short-service employees due to subpar performance
Sometimes, short-service employees may struggle to meet the performance standards expected of them.
As with most employee issues, prevention is better than cure, and employers should ensure staff understand their roles and responsibilities from the outset by providing detailed job descriptions, clear performance expectations, and training. This, coupled with regular and documented feedback sessions throughout their probationary period, should ensure the employee progresses as planned.
If, despite these efforts, their performance doesn’t meet the required standards, dismissing the employee for performance-related reasons during their probationary period is relatively risk-free, especially if you have evidence to support your decision. After all, the point of a probationary period is to assess and confirm an employee’s suitability for the role.
However, if an employer misses this window of opportunity, it can become more challenging to dismiss the employee once they have passed their probation. Whilst employee rights don’t increase until they have reached ‘long service’, the employer may be required to provide a longer notice period, or, subject to their procedures, may be contractually required to follow a more rigorous performance management process, including needing to present more substantial evidence of performance issues.
Dismissal is still possible and will usually be less risky than with a long-serving employee, but employers should ideally:
- Follow internal procedures, such as your Performance Management Policy, which may require the implementation of a formal Performance Improvement Plan, outlining specific issues, the necessary improvements, and a timeline for achieving them.
- Maintain comprehensive records of performance issues, feedback, and any actions taken. This will be crucial if dismissal becomes necessary and the employee alleges unfair treatment.
It’s important to note that while the employee might not have the tenure required to claim unfair dismissal, employees may still be able to bring other claims related to their dismissal regardless of their length of service, such as claims for automatically unfair dismissal or breach of contract.
Dismissing short-service employees due to conduct
Behavioural issues – such as insubordination, chronic punctuality concerns, and more severe problems like bullying and harassment – may surface in the early phases of employment. If these arise early on in the employment relationship, there is no need to wait until the end of a probationary period to make a decision on suitability for employment. Oftentimes, however, these issues emerge once the employee has passed their probation period and feels more secure. Over time, even minor conduct issues may become so disruptive that you look to dismiss.
How these situations are handled will depend on the specific nature of the misconduct. In some cases, employers may wish to dismiss right away without a process. However, it’s advisable to take legal advice before taking such a step.
Here’s how you can proceed with minimal risk of claims:
- Document the issues: Before taking any action, it’s crucial to have a well-documented record of the conduct issues. This includes records of specific incidents, any warnings or discussions you have had with the employee, and any efforts you have made to address the problems.
- Follow a fair process: While the employee may not have the right to claim unfair dismissal, following a fair and reasonable dismissal process (which will include giving the employee clear notice of the issues and providing them with an opportunity to respond to the allegations) is always safest.
- Adhere to company policies: Ensure that you are following your organisation’s internal Disciplinary procedures.
- Hold a formal meeting: Arrange a formal meeting with the employee to discuss the conduct issues and allow them to present their side of the story. The employee should be advised of their right to be accompanied by a colleague or trade union representative. This meeting should be conducted in a fair and respectful manner.
- Consider alternatives: Before proceeding to dismissal, consider whether less severe sanctions such as a written warning may be more appropriate.
- Maintain records: Again, keep detailed records of all meetings, communications, and the dismissal process in case the employee challenges the decision.
You may be able to condense or expedite the process in light of the fact that short-service employees can’t claim unfair dismissal. However, it’s essential to remain diligent and fair in your approach to avoid any nasty surprises. An employment lawyer will be able to help you to identify the best course of action based on an assessment of the risks.
Dismissing short-service employees due to sickness absence
Managing employee absences, particularly those linked to health-related issues, can be challenging at the best of times. However, it can be even more destabilising when these absences occur shortly after an employee joins the team. In some cases, the absence will relate to a health condition that the employee didn’t disclose during the interview process.
This can be frustrating for employers, as it places them in a difficult position and often leaves them scrambling to find cover. While you will no doubt want to support the employee, the longer the situation persists, the more strain it puts on the organisation and others in the team. Unfortunately, businesses can only endure so much disruption before dismissal becomes an option.
Despite their short tenure and inability to bring ordinary unfair dismissal claims, if the employee’s condition qualifies as a disability under the Equality Act 2010, dismissing them solely because of sickness absence can constitute disability discrimination.
Therefore, to avoid falling foul of employment law, employers should make sure that they have taken the following crucial steps before considering dismissal:
- Focus on the effect of the absences: The process here would not be questioning the genuineness or reason for absence, but the fact that absence levels are presenting an unacceptable level of disruption to the organisation.
- Obtain medical evidence: A healthcare professional can provide guidance on the employee’s condition, prognosis, and whether they are fit for their job role. This is particularly important where absences may be caused by an underlying medical condition.
- Explore reasonable adjustments: Employers have a legal obligation to consider and implement reasonable accommodations that may allow a disabled employee to continue working effectively. This could include, for example, flexible work hours, changes in responsibilities, transferring the disabled person to a vacant alternative role, or work-from-home arrangements.
- Keep detailed documentation: Maintain records of all discussions, accommodation attempts, and communications regarding the employee’s sickness. This will serve as crucial evidence in the event of a dispute or legal claim.
- Consider employment benefits: Assess the availability of any benefits, such as Permanent Health Insurance or provisions relating to ill-health retirement under pension schemes.
- Follow a fair procedure: Especially in cases where absence is related to an underlying medical condition, a full and fair procedure is likely to be required. Ensure you follow your internal procedures, i.e. absence management policy.
- Seek legal advice: It’s highly advisable to enlist specialist support to navigate the process and ensure legal compliance.
If you have checked all of these boxes, then it may be safe to dismiss.
In some cases, it may be beneficial to explore settlement agreements with the employee, which can provide a mutually agreeable separation without the need for a potentially contentious dismissal process.
In any event, employers should maintain empathy and sensitivity throughout. Dismissing an employee due to health issues is a challenging situation for both parties, and a respectful approach can mitigate the emotional impact and thwart potential claims.
3 things to keep in mind when dismissing short-service staff
In the UK, employees generally need two years of continuous service to claim unfair dismissal. However, there are several types of Employment Tribunal claims that can be brought with less than two years of service, including discrimination, whistleblowing, unlawful deduction from wages, and equal pay.
There is a dangerous assumption that an employee doesn’t have any rights until they have successfully completed their probationary period. This isn’t true; statutory rights will depend on length of service, not whether the employee has passed their probationary period. A probationary period has no legal meaning.
The dismissal procedure for short-service employees may be shorter than that of long-serving members of staff. However, you should still give clear notice of the termination, adhere to company policies and employment contracts, and ensure there are no discriminatory or unlawful reasons for the dismissal.
Jonathan Green, COO, Choice Care
Before you dismiss...
If there’s any uncertainty about the legal aspects of the dismissal, it’s always safest to seek legal advice, especially in complex cases that could be linked to protected characteristics.
At WorkNest, we are experts at helping employers to handle dismissal scenarios as efficiently as possible. Our team of Employment Law professionals excel at providing pragmatic, commercially-minded advice that weighs up the risks of dismissal versus the benefits to your organisation.
If you are contemplating dismissal and would like to discuss talk through your options with our team before taking action, call 0345 226 8393 or request your free consultation using the button below.