Should we start disciplinary action within the first two years of employment?

We have a strange situation with regard to dismissing people within their first two years of employment. On the one hand we have the unfair dismissal legislation which says that we do not have to begin any formal procedure, such as disciplinary action, within the first two years of employment. The law allows employers to use those first two years as a trial in many ways, to see if the individual is suitable.

On the other hand we have discrimination legislation which says that if you do not follow a formal procedure for dismissal, and a claim for discrimination is successful, the employer will receive an additional fine equivalent to 25% of the award for discrimination. As an employee you do not need to have any service to bring a claim for discrimination.

Tribunal claims show that where people believe they have a chance of winning a claim for discrimination, they are claiming unfair dismissal even though they do not have two years’ service, which tribunals will allow. This allows the 25% uplift to be claimed.

So, how do we make sure that we minimise the risk of a claim for discrimination but still use the flexibility that the unfair dismissal legislation gives us? Our advice to clients always and without fail is never to start the disciplinary procedure for employees with under two years’ service. Initially, use your probationary periods wisely and properly and label any conversation during that time a ‘probationary review’. Never give a warning. Principles of natural justice require everyone to be given one chance to improve, so use the probationary review to warn of the consequences of not making that improvement, i.e. dismissal. Then use the three step procedure for the dismissal meeting. This is outlined in our news article ‘Do we have to follow procedure?” on the HR Update page of our website.

Some of our managers are muddling their wording - calling meetings 'disciplinary' meetings when they are not, and giving warnings when they should not be. Our advice for any conduct or performance meeting within the first two years of employment (but outside of the probationary period) is to have a ‘formal meeting’ rather than a disciplinary meeting and follow the three step procedure for any dismissal beyond the first month of service. This will minimise the chance of any uplift in any award being given.

So, to summarise: use the term “formal meeting” within the first two years of employment. Do not use ‘disciplinary meeting' or 'hearing’ and do not, under any circumstances, give a disciplinary warning. That enables you to retain the flexibility that was intended within the unfair dismissal legislation while protecting you from any uplift should there be any chance of a discrimination claim. You will need your paperwork to defend any claim, which is why the terminology you use on your letters and meetings notes is really important. You must be able to evidence that you understand the different procedures and have used the right one for the right circumstance.

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