Probation & Covid-19
Recruiting has never been an easy task to undertake but recruiting in a pandemic has been even more of a challenge for businesses. A once thriving industry with an abundance of applicants may now find it hard to find the talent or the funds to hire an applicant may suddenly not be available.
Running a business is a challenge for every company but with the pandemic financial difficulty has been a common issue across the world and across many industries. Businesses initially had the funds to hire new employees, then the company takes an unforeseen hit and is no longer in the financial position to keep these new hires, so what can they do if this happens?
When considering terminating a contract of employment during the employees probationary period as a cost-saving measure, the company should first explore alternative options, for example, the availability of government assistance. Since the pandemic hit the UK Government has been trying to help businesses retain their employees through government assistance. It may be in the employer’s best interest to retain their employees during the pandemic in order to avoid having to repeat the recruitment process when the economic situation improves, especially if the employee is performing well in their role.
When new employees are hired every employee has a probationary period to allow both the employee and the employer see if they are a ‘good fit’. If an employer decides to proceed with terminating the contract of an employee on probation for economic reasons during the pandemic they must ensure the reasons for the dismissal are explained to the employee and correctly documented. Assuming the employee has less than two years’ service with the company they will be unable to claim unfair dismissal unless the dismissal was for an automatically unfair reason, for example, they could claim they were really dismissed for making a complaint about health and safety in the workplace. The employer will also need to be able to demonstrate that the dismissal was not discriminatory as dismissed employees do not need to have two years’ service to bring a discrimination claim.
The employer must give the employee their contractual notice or the statutory minimum which is set out in the Employment Rights Act 1996, section 86 (1), whichever is greater, or make payment in lieu of notice. If an employer makes payment in lieu of notice when it is not provided for under the contract of employment this will be a breach of contract and therefore they are unable to enforce any post-employment restrictive covenants. If there is a contractual dismissal procedure the employer must follow this in order to avoid a claim for breach of contract.
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