When you are considering whether to terminate an employee, one of the first employment law issues is length of service. In general, although there are some exceptions, the right to bring an employment law claim for unfair dismissal only accrues after the employee has been employed for one year. We recommend to all our employment law clients that they have probation periods for new employees and that the first appraisal of each new employee is carried out sufficiently prior to the one year period to allow for notice to be given if it proves necessary.
If your problem employee has been employed for less than a year, it may be possible to simply tell them ‘things are not working out' and give them their contractual notice. All employers should take care to follow any company procedures. If the employee in question has raised an internal grievance, or there is any possibility of discrimination issues (for example, if you are dismissing a woman and the other employees are all men) or trade union issues, then you really should take specialized employment law advice to minimize the risk of any claim. Depending on the reason for your decision, you may also want to give some thought as to what sort of reference you would give.
Once the relevant service period has elapsed, you can only dismiss an employee for one of the five ‘permitted' grounds, which are:
- Capability (performance)
- Legal Prohibition
- Some other substantial reason
Whatever your problem with your employee you need to ask yourself whether it fits into one of these categories and then determine the best course of action to deal with the problem and resolve the issue.