HR Expert: Probationary Dismissal

My client has an employee who is on a probationary period, however they have had a lot of absences during this time and my client wants to dismiss them. What are the rules around this?

Probationary periods are commonly used to give employers a reasonable amount of time to decide whether new starters are able to perform at an adequate level. Rules around contractual provisions such as notice periods, enhanced sick pay and other benefits are also typically reduced during this time.

Generally speaking, your client would be free to dismiss the employee if they are unhappy with their attendance and feel that the repeated absences are having an impact on business operations. Employers often adopt a more flexible approach to managing disciplinary matters and dismissal decisions during a probation period and set this out in the employee’s contract of employment. In these circumstances, they will be free to proceed with a dismissal fairly easily in these circumstances.

Although your client may reduce the amount of contractual notice during probation periods statutory notice will still apply. This means if the individual has been employed for a month or more but less than two years, your client is required to provide them with at least 1 weeks’ notice of dismissal.

However, before doing so your client should consider the reason for these absences, especially if they relate to a disability or the employee exercising their right to time off for dependants, for example. This is where return to work interviews and accurate absence management records are vital in allowing your client to determine the exact reason for any unauthorised time off.

If, for example, your client proceeded to dismiss the employee due to a number of sickness related absences then they could potentially face claims for disability discrimination. This may be also be the case if the employee required time off to attend to a disabled child or family member, which could be classed as associative discrimination.

Therefore, in situations like this it always advisable for your client to sit down with the employee and explain any concerns regarding their attendance. This will present an opportunity for the individual to disclose any underlying issues, give your client a better understanding of the situation and whether reasonable adjustments would be required at work.

Even if the absences are not disability related your client could opt to extend the probation further to give the employee an opportunity to improve, especially if they have performed well when present at work.

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