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Using Your Probationary Period - The Hidden Dangers

ARTICLE ORIGINALLY PUBLISHED MAY 2010

I am a big advocate of having a long probationary period. Salon owners should maximise the period they have before confirming the appointment of staff. The probationary period should be used positively for the benefit of salon owners and new staff. Regular review meetings and targets in terms of attendance, skills acquisition, column earnings are all useful for both employer and employee to make expectations clear Under normal circumstances employees whose appointment is not confirmed do not have access to Employment Tribunal until they have 12 months service. However it is still necessary t follow a reasonable process when ending someones employment in their Probationary or trial period.

Some unscrupulous (or misguided) employers abuse this position and take the view that they are free to do what they want until an employee has a year in post. They are wrong.

The Facts

Whilst employees need 12 months service to go to Employment Tribunal to claim unfair dismissal there is no length of service requirement in other cases.

For example, when an employee claims unlawful discrimination they have a right to go to Employment Tribunal from day one of their employment. Even unsuccessful applicants for jobs have a right to claim unlawful discrimination at Employment Tribunal.

Employees are protected in law from discrimination on the grounds of race, colour, sex, sexual orientation, religious belief, disability and age .In some ways employers have to be even more cautious in these cases as the potential award has no ceiling unlike claims for unfair dismissal.

A salon owner contacted me recently when they found themselves at Tribunal having released a therapist in her probationary period when they found out she was pregnant. They repeated the myth that “employees have no rights in their first year of employment”. It was inevitable that they would lose on the grounds of sex discrimination and a large pre hearing financial settlement was agreed.

In another case an employee argued with the salon owner regarding holiday entitlement. The salon owner had advised that “temporary staff” didn’t receive holiday pay. When the employee provided evidence that this was wrong she was paid for holidays she had taken but her contract was ended. Once again dismissal for claiming a statutory (legal) right is automatically unfair and employees do not need a years service to have access to tribunal.

Surprisingly one employer ended an employee’s employment after 51 weeks (based on the “ you are safe in the first year” myth). However, in their first year an employee is entitled to one weeks notice and the tribunal extended their service by one week and hey presto, accepted their application for unfair dismissal!

Interestingly there was a more recent case where an employee was “not confirmed” in their post in their probationary period. The employee claimed this was because they had raised health and safety concerns with the salon owner. Once again, the Tribunal accepted the claim ie the employee claimed they were dismissed for raising legitimate safety concerns did not require 12 months service. The onus was then on the employer to convince the tribunal that the issues of the health and safety concerns and the decision not to confirm the appointment, were not linked.

The above cases relate to “unfair dismissal”, there is another term called wrongful dismissal.

Where employees do not have 12 months service they can still claim wrongful dismissal. This is a contractual claim where there has been a breach of oral or written terms of an employment contract by an employer.

The most common example of wrongful dismissal is failure to give the employee the correct length of notice.

Employees claim damages in wrongful dismissal cases. They can claim their full net salary for the contractual notice period.

This Months Question

I know that full time staff get 28 days holiday, that’s 5 weeks and 3 days. Some of my staff work a 6 days week and claim that they should get more entitlement ie 33 days, are they right?

No, they are not. The legislation requires full time staff to receive 28 days leave (it doesn’t say 5 x 5 day weeks plus 3 days. Staff who work 6 days a week have the same 28 day minimum entitlement. It is based on having 28 days rest and not the length of the working week.



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