Staff dismissals can be a challenging process for both sides. In this article, Croner explores the legal routes a practice principal can take to ensure due process is observed.

For immediate advice, contact Croner's free advice line on 0844 561 8133.

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It’s never ideal to employ someone at your medical practice, only to find a few weeks later that they are not suitable for the role.

But, assuming you’ve done everything right, and you have the appropriate clause in your employment contract, you can dismiss an employee at any point during their probation period.

It’s usually recommended that you give them a period of time to improve after raising your concerns. If they still fail to meet expectations, you should invite them to a formal probation review meeting.

If your employment contracts include a notice period, you should provide the employee with this notice in writing. If you want to dismiss them on the same day as the meeting, you should provide pay in lieu of their notice.

Dismissal during probation

There are many reasons why you could consider dismissing an employee before the completion of their period of probation.

The most common reason for dismissal during the probationary period is if the staff member doesn’t have the skills required for the role. It could also be down to:

• conduct
• capability
• extended absences due to sickness

According to the Advisory, Conciliation and Arbitration Service’s (Acas) guide to dismissal during the probationary period, employees are still entitled to a statutory notice period of one week. This applies if they’ve been in employment for one month or more (up to two years).

There's no obligation to provide notice to those employed for less than a month, although you will need to check if any notice is due, in the employee's contract of employment.

Consider the following procedure for dismissing an employee during their probation period:

• In writing, invite the employee to a probationary review meeting where you’ll discuss issues relating to their performance.
• In the letter inform them you’re considering terminating their contract.
• Advise them of their right to have someone there with them (a colleague or member of a trade union).
• Offer evidence that supports your concerns and give them the opportunity to respond.
• Decide on appropriate action. Before terminating the contract of employment, consider extending the probation period.
• Communicate the outcome to the staff member in writing.

To handle probationary reviews consistently, companies should consider investing in career development for managers on how to manage probation for employees.

By completing successful reviews and highlighting areas of improvement, you’re also preventing situations where you have to dismiss staff during their probation.

Dismissal during probation due to sickness

You’re within your right to do this even during the new starter’s first few months.

You may have to consider dismissing an employee if they have to take time off work to recover from an illness or injury.

However, you should conduct an assessment to identify if the person with illness or disability is work-related.

Of course, dismissal should always be a last resort after considering where you could make reasonable adjustments that could help them return to work if they’re off with a disability.

Reasonable adjustments include:

• providing parking spaces closer to the office building
• reorganising roles to enable a disabled employee to carry out certain duties
• allowing regular breaks
• providing specialist equipment
• allow options for flexible working

Unfair dismissal – the current situation

At present, employees cannot make a claim for unfair dismissal until they have been continuously employed for two years or more. After this time any dismissal must be for a ‘fair’ reason (capability, conduct or ‘some other substantial reason’). Employees with less than two years’ service do not have such protection.

However, as a sign of good faith, you can give employees on probation up to five working days to lodge an appeal. This may help catch/avoid any claims.

Planned changes to unfair dismissal

At time of writing, the Government is planning to remove the two-year qualifying period for unfair dismissal claims, making it a right from day one. Employers should therefore ensure they have robust policies and procedures in place. The Government is likely to allow employers to operate ‘fair and transparent’ probationary periods, although the length of these periods is still subject to consultation.

Get expert advice

Before you dismiss someone, you can contact the experts at Croner on their free advice line. They will be able guide you through the process and ensure that you’re remaining compliant and avoiding costly employment tribunal claims. Contact one of Croner’s partnership team on 0844 561 8133.