Ask the expert: Terminating employment in a probationary review

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An employee has made mistakes during his probationary period and the employer wants to terminate his employment. However, prior to this he was told he was in line for a promotion. Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise on where the employer stands.

The question:

I have a permanent employee who has made errors during his probationary period, and we have discussed this on a previous occasion. However, we have not put in place any training plans or personal development plans. I have arranged for a meeting to be held with the employee to discuss his future and to terminate his employment.

Also, prior to this we were thinking about promoting him but have since changed our minds due to the errors. He was told he was in line for promotion. Where do we stand legally and really as good business practice?

Legal advice:

Esther Smith, partner, Thomas Eggar

I assume from the information provided that the employee in question has less than a year's service, as he is still in his probationary period, although he is on a permanent contract.

If this is right, you are in a strong position should you wish to terminate or keep him on. If you wish to dismiss, you need to adhere to the notice requirements under the contract and explain to him why you are letting him go. There is no practical need to follow the statutory dismissal and appeal procedures as, although they technically apply to employees irrespective of length of service, he can only enforce them through an unfair dismissal claim which he would need a year's service for.

If you want to keep him on, but don't want to give him the promotion promised, then you need to explain this to him and confirm the terms that he will continue to be employed on.

If he objects to the fact that you are not following through with your promotion promises then he can always resign and go elsewhere. He cannot rely on the retraction of the promise to promote as grounds for a constructive dismissal claim as he has less than a year's service.

Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information please visit Thomas Eggar.

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Martin Brewer, partner and employment law specialist, Mills & Reeve

Frankly, if the employee has less than one year's service, and if there is no underlying discrimination issue, you are fine to dismiss without following any particular process because an employee in this position cannot claim unfair dismissal.

However, if the employee has more than one year's service, and can therefore claim unfair dismissal, you will need to follow a fair procedure (incorporating the statutory minimum procedure) and dismissal will have to be a fair sanction in all the circumstances.

In performance cases, a fair procedure requires you to set appropriate performance standards, measure the employee against them, tell the employee if he/she is underperforming and progress through staged warnings to dismissal over a reasonable period of time (which inevitably will vary depending on the seniority of the employee, how critical they are to the business, and so on).

You should, during this process, consider the reason for any underperformance (are there external factors outside the employee's control?) and also offer reasonable support, including training, mentoring, resources, to help the employee achieve.

Martin Brewer can be contacted at: [email protected]

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