Giving an employee the status of “probationer” does not give the employer the right to terminate the employee’s employment without the employee having any legal recourse. Where it is a term of the employee’s contract of employment that the employer will follow a disciplinary or other procedure (such as a redundancy procedure) prior to the employee’s dismissal and this is not followed, the employee could claim breach of contract. If they can show that conducting the procedure would have taken time and therefore extended the period of employment, they will be able to claim as damages lost wages for the time that the disciplinary or other procedure would have taken. In most cases, the compensation awarded tends to be a sum of approximately three to four weeks’ pay.
So, if an employer dismisses an employee on probation for conduct reasons without following a contractually binding disciplinary procedure, the employer is at risk of a breach of contract claim for failing to follow its own procedure.
An employee who is on probation is unlikely to have the required length of service to be able to claim unfair dismissal. However, they would be able to bring a claim if the dismissal is for an automatically unfair reason, such as pregnancy or whistleblowing.
Original article ‘If an employer filed to follow its procedures for employees on probation would a dismissed probation have any redress?’ Written and Published by XpertHR
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