Can you dismiss a member of staff with under 2 years service?
Dismissals - Under 2 years’ service – Beware
Employing people can be great, but when things go wrong it can be a very stressful time for all concerned. If employees are not performing at work, then you may have to consider dismissing them. This is always difficult as it can be very costly if you get it wrong and there’s always the risk of finding yourself in an employment tribunal.
Nursery owners often contact me to ask if they can dismiss someone who has only been with them a few weeks or months and the simple answer is yes. But you must be careful and ensure you follow the correct disciplinary procedure. Some people think that because the employee has worked for them less than 2 years, they don’t have to worry and that they can just tell the employee not to come back to work. This is not true.
Nursery owners are often told you don’t need to worry about dismissing anyone with less than 2 years’ service as they cannot claim unfair dismissal. This is correct. However, they can make a claim for discrimination even if they have only been employed 1 day. Unfortunately, there is no cap on what a payment for discrimination could be, unlike an unfair dismissal claim.
There is also a myth that if someone has acted in a way which is considered gross misconduct they can be instantly dismissed. There is no such thing as instant dismissal.
If an employee commits an act of gross misconduct, they can be summarily dismissed without notice or pay in lieu of notice. But you must still follow a fair disciplinary procedure which should include carrying out an investigation, holding a hearing and giving the employee the right of appeal, as you would with any disciplinary issue.
When there is a possibility that you may dismiss an employee be careful. Follow these guidelines no matter what their length of service is.
- Investigate – discover the facts; interview any witnesses before considering whether any action needs to be taken.
- Write to the employee and invite them to a hearing stating the allegations against them and informing them there is a possibility they may be dismissed.
- Advise the employee they have a statutory right to be accompanied by a fellow worker or trade union representative.
- During the hearing take comprehensive notes or record the meeting, as these will be required if you need to attend an employment tribunal.
- Allow the employee to have their say and ask them if there are any mitigating circumstances to be taken in account.
- After hearing all the evidence, adjourn the meeting to consider what actions are necessary.
- Reconvene the meeting to give your decision and explain the outcome to the employee.
- Confirm your decision in writing.
- Inform the employee of their right to appeal against the dismissal.
My advice is always treat all employees fairly, make sure your disciplinary policy is up to date and consider introducing a capability policy.
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