"I have a review after three months’
probation in my new role – can I be fired within that time if they
don’t like me?" asks Lucy from Gloucester. Quite simply "yes", says
Philip Landau, partner at London law firm Landau Zeffertt Weir, but
there are exceptions.
The short answer to this question is “yes”, where you’ve been employed less than a year and your probation falls within this period, which typically it would as they tend to be 3 or 6 months in length.
The reason for this is because your main employment rights do not kick in until you’ve been employed for more than a year, so employers can dismiss you without fear of you subsequently issuing a claim in an employment tribunal. There are a few exceptions to this, such as where you’re dismissed by reason of any kind of discrimination, or for whistle blowing. In such cases, the one-year rule does not apply and you can still make a claim if you’re dismissed during your probation period.
Within the offer letter or contract of employment your employer should make it clear that they reserve the right to extend the probationary period or to terminate the contract during the probationary period if you’re not meeting the necessary performance or behavioural standards. Such standards should have been clearly identified to you. The reality is, however, that even if your employer doesn’t reserve the right to terminate your employment within the probation period or does not follow process to the letter, there is little you can do if you’ve been employed for less than a year (as mentioned above); you would, however, be entitled to either work or receive a notice payment and any pro-rata holiday entitlement.
If your probation period is in respect of a promotion for a new role and you’ve more than a year’s employment, the position is very different. A trial period should be agreed with you in respect of the new position before you take up the role. This may especially be applicable where there is an intensive period of training required or a steep learning curve. Your employer should be careful to ensure that the training requirements are discussed and agreed with you together with any targets and time frames for performance. You should also be made aware of the consequences of not attaining the necessary performance standards. The failure by your employer to properly support you during this period resulting in your dismissal may lead to a successful claim by you for unfair dismissal. You qualify to make a claim here in a way that you simply do not with less than one year’s employment.
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