Dismissal during probation period

[PMKeates]

Surely then there would be no point in having a probationary period if it didnt do anything? The employer has the right to terminate employment within the specified probationary period with no notice if the employer feels that he or she (the employee) is not suitable for the position.

It's called BS. Half the world runs on it. Companies attempt to peddle it as fact. I personally clashed with a several hundred million pound company in a large redundancy process over notice periods and holiday payments, and was told I was wrong. The end result was, the company was wrong, and the existing company policy was not in compliance with the Employment Rights Act and Working Time Regulations.

The employer was totally within its rights to dismiss her within her probation period. They have no obligations to her other than to do it in a professional manner without discrimination. You can debate it until you are blue in the face but as an employer of people I speak from experience.

I'm sorry but I think you may be speaking from experience of not complying with the Employment Rights Act. A probationary period, unless it is a fixed term contract for a period, offers you no extra ability to terminate people during said probationary period without notice than if they were not in a probationary period.

 

[Dolph]

It's called BS. Half the world runs on it. Companies attempt to peddle it as fact. I personally clashed with a several hundred million pound company in a large redundancy process over notice periods and holiday payments, and was told I was wrong. The end result was, the company was wrong, and the existing company policy was not in compliance with the Employment Rights Act and Working Time Regulations.I'm sorry but I think you may be speaking from experience of not complying with the Employment Rights Act. A probationary period, unless it is a fixed term contract for a period, offers you no extra ability to terminate people during said probationary period without notice than if they were not in a probationary period.

Did you not read the link I provided earlier?

http://www.direct.gov.uk/en/Employment/RedundancyAndLeavingYourJob/Dismissal/DG_175828

If you want to make a claim to an Employment Tribunal for unfair dismissal, your will normally need one year's service first. If you were dismissed for an automatically unfair reason you can make a claim no matter how long you had worked for your employer.

This is where the clear limitations are set out, employees with less than 1 years service do not have all the same rights as those who have been employed longer. (This is true whether within or outside of any company specified probation period).

http://www.direct.gov.uk/en/Employment/RedundancyAndLeavingYourJob/Dismissal/DG_10026692

Gives a list of reasons automatically judged unfair.

If the reason for dismissal is not on that list, then you cannot claim unfair dismissal with less than 12 months service.

 

[PMKeates]

A minimum notice period features as a reason for automatic unfair dismissal on the list. Therefore, I see it as dismissing someone after 1 month (after which the statutory minimum one week notice period is in place) but within a probationary period of 3 months, with no notice, is automatic unfair dismissal and you are not subject to the initial one year limitation.

 

[Pudney]

I think the point PMKeates was making is that a probationary period in your contract doesn't actually remove your statutory rights, so after one month you're entitled to one weeks notice and you're entitled to start accruing holiday from commencement of employment.

Your contract might state otherwise but it won't be legal.

I'm not sure PMKeates was referring to unfair dismissal at all, just the fallacy that a probationary period overrules your statutory rights.

Edit: And after reading the above post I may have been mistaken

 

[Dolph]

A minimum notice period features as a reason for automatic unfair dismissal on the list. Therefore, I see it as dismissing someone after 1 month (after which the statutory minimum one week notice period is in place) but within a probationary period of 3 months, with no notice, is automatic unfair dismissal and you are not subject to the initial one year limitation.

Well, except that they had only been employed 3 weeks, and we don't know whether they were given PILON or not... Paying in lieu of notice negates any issues at all with notice periods...

 

[PMKeates]

Well, except that they had only been employed 3 weeks, and we don't know whether they were given PILON or not...

You replied to a comment I posted in reply to someone saying that an employer can terminate someone within a probationary period without notice. This is not true if they have worked a month or more. I don't see why you have taken issue with my comment.

Pudney@work has my position exactly correct. The unfair dismissal route is how you could enforce your statutory rights, and you would automatically be granted that, even after one month of employment (not the normal one year), if your notice period wasn't respected.

In the situation described in the OP, the person has been working for 3 weeks, and so there is little other than a payment for accrued holiday that they are entitled to.

Paying in lieu of notice negates any issues at all with notice periods...

Well, ideally it wouldn't be strictly PILON, but instead a settlement payment for breach of contract (as PILON is subject to tax and NI but a settlement payment isn't).

 

[Dolph]

You replied to a comment I posted in reply to someone saying that an employer can terminate someone within a probationary period without notice. This is not true if they have worked a month or more. I don't see why you have taken issue with my comment.

Your notice period covers the period to be paid under your contract, not the amount of time you need to be aware of contract termination.

If someone has got less than 12 months service, I could call them into my office, as they walk onto the premises, and tell them they are fired because I don't like their haircut, that I want them to leave the building now, and I will pay them for 1 week from today. That is entirely, completely, legal.

Pudney@work has my position exactly correct. The unfair dismissal route is how you could enforce your statutory rights, and you would automatically be granted that, even after one month of employment (not the normal one year), if your notice period wasn't respected.

But, as said, all you have to do to respect that notice period is pay them for their 7 day notice period. You don't have to do anything else, provided you are not sacking them due to another prohibited reason.

In the situation described in the OP, the person has been working for 3 weeks, and so there is little other than a payment for accrued holiday that they are entitled to.

That I agree with, they should be entitled to around 1 day's holiday if they work full time.

Well, ideally it wouldn't be strictly PILON, but instead a settlement payment for breach of contract (as PILON is subject to tax and NI but a settlement payment isn't).

It isn't a settlement for breach of contract though, as most contracts reserve the right to pay PILON...

 

[Mr-White]

I left a company after 6 weeks, luckily they paid me till the end of the month. TBH I didn't really care, the IT manager at the architects was a fat worthless **** who lied his arse off to the boss about me so kinda did me a favour.

MW

 

[Castiel]

Your notice period covers the period to be paid under your contract, not the amount of time you need to be aware of contract termination.

If someone has got less than 12 months service, I could call them into my office, as they walk onto the premises, and tell them they are fired because I don't like their haircut, that I want them to leave the building now, and I will pay them for 1 week from today. That is entirely, completely, legal.



But, as said, all you have to do to respect that notice period is pay them for their 7 day notice period. You don't have to do anything else, provided you are not sacking them due to another prohibited reason.


That I agree with, they should be entitled to around 1 day's holiday if they work full time.




It isn't a settlement for breach of contract though, as most contracts reserve the right to pay PILON...

Exactly.

 

[platypus]

EDIT: I'm right. You are entitled to be paid for untaken yet accrued holiday:



http://www.businesslink.gov.uk/bdotg/action/detail?itemId=1074415038&type=RESOURCES

Thats ace, so you could work for someone for a month, get sacked for gross misconduct and demand holiday pay for your full contracted leave?

 

[PMKeates]

Your notice period covers the period to be paid under your contract, not the amount of time you need to be aware of contract termination.

If someone has got less than 12 months service, I could call them into my office, as they walk onto the premises, and tell them they are fired because I don't like their haircut, that I want them to leave the building now, and I will pay them for 1 week from today. That is entirely, completely, legal.

I am not debating whether you can be paid in lieu of notice, whether you can be let go because you don't like the jib of their gab etc. I am taking a stance in disagreeing with those who feel that just by calling the first three months of someone's employment a "probationary period", you can simply terminate them at will with nothing. This is what happens on a regular basis, especially with companies that employ young staff.

But, as said, all you have to do to respect that notice period is pay them for their 7 day notice period. You don't have to do anything else, provided you are not sacking them due to another prohibited reason.

This is not relevant to someone being in an imaginary probationary period or not.

It isn't a settlement for breach of contract though, as most contracts reserve the right to pay PILON...

A standard PILON clause isn't the best way to do it. PILON is expensive (in terms of tax) for both employee and employer. You can word a sort of anti-PILON clause in to a contract that will enable the breach of contract settlement. Even if there is a PILON clause, depending on it's wording, you may still be able to do it. I've had experience of both (i.e. a PILON clause flimsily worded that was able to be breached, and a rock-solid PILON clause that didn't really have a way around). Either way, you need the cooperation of the company in question for it to work.

Thats ace, so you could work for someone for a month, get sacked for gross misconduct and demand holiday pay for your full contracted leave?

If you work somewhere a month and are terminated, you are entitled to pay equivalent to 1/12th of your annual holiday entitlement, including public holidays (so minimum 28 days for a full time employee), minus any public or personal holidays you have taken. You can be in a position of owing the company money if you have negative days remaining after this calculation.

 

[Shador]

Probationary periods are still a grey area in employment law which seems to contradict itself currently when you try and find a conclusive answer -even ACAS!

Employees who have worked for less than a year still have the same rights as other employees who have been there longer however they cannot claim constructive dismissal.

As long as Specsavers have a clear probationary policy which was made clear then there is no reason that the above action could not have taken place fairly. Three weeks is short, but if they did some intense coaching of which your friend didn't respond to or showed no signs of willingness then I'd say it's fair.

Your friend still has a right to appeal if she wishes to, if she feels it is unfair. If the outcome letter stated the reasons word for word as above then I would appeal on grounds of irony!!

 

[Housey]

I'm sorry but I think you may be speaking from experience of not complying with the Employment Rights Act. A probationary period, unless it is a fixed term contract for a period, offers you no extra ability to terminate people during said probationary period without notice than if they were not in a probationary period.

You can get rid of a person within a day, within a week or within any time you may choose if you follow due process or their is clear infringement of policy, as I said above. The probation period has no influence on this in reality, there is a process but if it's defined and non discriminating it is straightforward. I know as I have done it, more than once and done it within employment law as there are people who's job it is to ensure I follow employment law and don't expose the business to any form of liability.

 

[Infam0us]

I'm on a 6 week probation period at Wetherspoons Kitchen, I can be sacked at anytime without notice or leave if I want to. Although I did sign a contract stating this so its not like I don't know about it.

 

[The Mad Rapper]

Before you ask...

Is it you Styles?

 

[Pudney]

I'm on a 6 week probation period at Wetherspoons Kitchen, I can be sacked at anytime without notice or leave if I want to. Although I did sign a contract stating this so its not like I don't know about it.

Aah but that's the point. A contract can't remove your statutory rights and your statutory rights are that after a month of working you need to be given a weeks notice (or paid in lieu of notice).

 

[Infam0us]

Aah but that's the point. A contract can't remove your statutory rights and your statutory rights are that after a month of working you need to be given a weeks notice (or paid in lieu of notice).

Really? My contract just says anytime during the 6 weeks I can be sacked or just leave without any notice, although it rarely happens. I guess because I've signed into a contract with them that means I won't have the usual statutory rights?

 

[Castiel]

Really? My contract just says anytime during the 6 weeks I can be sacked or just leave without any notice, although it rarely happens. I guess because I've signed into a contract with them that means I won't have the usual statutory rights?

No it doesn't mean that. No contract, whether you agreed to it or not can deprive you of the minimum statutory rights under employment law.

The company would be legally required to pay you one weeks notice if it terminated your contract in that 6 week probationary period as long as you had completed one months service.

 

[Pudney]

Really? My contract just says anytime during the 6 weeks I can be sacked or just leave without any notice, although it rarely happens. I guess because I've signed into a contract with them that means I won't have the usual statutory rights?

A contract can't take away your rights that are given to you by the law of the land.

 

[soultaker]

she shouldn't of gone to spec savers