Unfair Dismissal During Probation – Rights to Claim for Wrongful Termination

A new job often has a probation period. As a new employee, you have fewer employment rights than workers who have been with a business for more than two years. Our guide looks at unfair dismissal during probation. Whilst rights to claim for a wrongful dismissal are very much eroded during a probation period, there are still some situations where a claim can be made.

Our guide looks at the general rules around unfair dismissal, and highlights scenarios where a claim for wrongful termination could still be made during probation.

Want to know more about what happens during probation periods? Our guide looks at what you can expect.

What is Unfair Dismissal?

When you have worked for an employer in the UK for 2 years or more, you have more protection from dismissal. You can only claim unfair dismissal after this period. However, that does not mean there’s no such thing as unfair dismissal during your trial period.

Unfair Dismissal During Probation

Although the right to claim unfair dismissal does not usually apply until you’ve worked for a UK employer for two years or more, there are still situations during probation where you could be wrongfully dismissed.  

Automatically Unfair Reasons For Dismissal

UK employment law says dismissal is always unfair if you are fired for an automatically unfair reason, or are discriminated against.

If you are fired for an unfair reason during probation, you could claim at an employment tribunal. There is no time limit for a claim made on this basis.

It is automatically unfair to dismiss an employee because they:-

  • Are pregnant or on maternity leave during probation.
  • Have asked for statutory employment rights such as minimum wage.
  • Are a whistleblower.
  • Have taken action over a workplace health and safety issue.
  • Are a trade union member and took part in industrial action, or were acting as an employee representative.
  • Have a disability.

When you are on probation, an employer does not have to give you a written reason for dismissal. The exception to this is if you are pregnant. If you are pregnant you must be given a reason for losing your job via email or in a letter.

What to Do if You Think You’ve Been Unfairly Dismissed

If you think you’ve been unfairly dismissed you need to act quickly. You have 3 months and 1 day to lodge a claim at tribunal. Within 7 days of termination, you may also be able to make your employer continue to pay your wages.

Fair Reasons for Dismissal During Probation

A probation period is there for both employer and employee to make sure the role is a good fit.  It would be fair to be sacked during your trial period for reasons such as:-

  • Poor performance.
  • Bad timekeeping.
  • Failure to fit into the team.
  • Excessive absences.

If you are not performing well, your employer should still follow proper procedure and give you the chance to improve.

Our guide on fair reasons for dismissal discusses the reasons you can lose your job in more depth.

Proper Dismissal Procedures

Employers should follow proper dismissal procedures if they terminate your employment during probation.

If they don’t, they may leave themselves open to a claim an employee was dismissed for an automatically unfair reason.

If there’s a disciplinary reason for dismissal, the company’s disciplinary procedures should be used. This should include a meeting, which the employee has been informed of beforehand.

If there is a performance related reason for dismissal, it should not be a surprise. There should be a proper procedure. During probation, employees have the right to be accompanied at any disciplinary meeting.

Proper records should be kept of the reasons an employee was dismissed during their probation period, and proper procedures should be followed.

Rights if You are Fired During Probation

If you are dismissed during probation, and the reason is fair, you still have statutory rights.  If your employer does not respect these rights, they will be in breach of contract. Even if you do not have a work contract, you still have rights.

Notice Periods & Pay

You are entitled to notice periods and pay after dismissal during probation. In the first instance, check your contract to see what you are entitled to.

If your contract is silent, or you do not have a contract of employment you are entitled to a statutory notice period.

You should get a minimum of 1 weeks paid notice if you have been employed for more than a month. If your employer does not wish you to work with immediate effect, you should be given payment in lieu of notice. You should also be paid any accrued holiday pay.

If you have worked for an employer for less than one month, you do not have the right to any notice period. Similarly, if you wish to resign during your probation period you don’t have to give notice in the first month.

Reasons For Dismissal

It’s good practise for you to properly understand the reasons for your dismissal. However, this is only a statutory right if you are pregnant.

Further Advice

The above is a general guide. If you feel you have been unfairly dismissed during probation, contact ACAS or Citizens Advice for information. They will be able to advise your rights based on your individual situation.

Anyone considering resigning during probation should check out our guide looking at whether you need to give notice during probation periods.

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