I have an employee who is nearing the end of their probationary period of three months. Bluntly, he was a mistake and does not fit into my business. I want him out of the business as quickly as possible. Since he is still in his probationary period, can I simply fire him?
There are a few things to consider here. Firstly, your contract of employment will probably specify a minimum period of notice which you need to give him during the currency of the probationary period. Unless he has committed an act of gross misconduct, you will need to give him that notice, or pay him in lieu if the contract allows you to do that. If the contract doesn’t allow you to do that, bear in mind that if you pay him in lieu regardless, any restrictive covenants which might be in the contract will not be valid.
Secondly, if you have a contractual performance management policy or disciplinary policy, he could claim that his dismissal was in breach of contract. He could potentially argue that it would have taken you, say, two months, to dismiss lawfully. It is for that reason that such policies often state that they are not applicable to probationary employees or those with less than one (or two) year’s service.
Thirdly, and perhaps most importantly, are you sure there are no other claims he could make? Clearly he cannot claim unfair dismissal as he does not have two years’ service. But I have seen too many examples of employers who have simply fired people on the basis that they couldn’t claim unfair dismissal, only to find themselves on the wrong end of a discrimination claim, or a whistleblowing claim (which don’t require any qualifying service at all). Employees or their advisers can be creative in seeking to circumvent the qualifying periods for unfair dismissal. If your employee has no idea what is coming, and you simply fire him without any process, he is probably more likely to seek to challenge his dismissal in any way possible. So I would always recommend that some form of process is followed, even for probationary employees.
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