Dismissal During a Probationary Period in Childcare

What Nurseries, Pre Schools and Out of School Clubs Need to Know

We’ve written two previous blogs about Probationary Periods and they remain one of the most common reasons why we will have a conversation with one of our lovely retained clients.

Probationary Periods are not required in employment law but if you are intending to use them you do need to ensure that you follow certain rules.

Since April 2020, if you have a probationary period it must be stated in the Written Statement of Terms and Conditions given to your employee on their first day of employment. It will state how long the priobationary period is and whether you wish to reserve the right to terminate employment within the probationary period and at the end of the probationary period. Equally it will state whether you reserve the right to extend if performance is not to the Company’s satisfaction.

We recommend you aren’t specific about the nature of your management of the employee’s performance in the probationary period. Anything too specific may cause you issues if you don’t follow what you have said you will do.

So what happens if you decide to terminate an underperforming employee in the probationary period in your Day Nursery, Pre-school or Out of School Club. Here’s some things you should be mindful of:

1. Does the employee have a Written Statement of Terms and Conditions stating that employment was subject to a probationary period?
2. Is the probationary period still in date? If its the 15th November and the 6 months expired on the 6th November the probationary period has been successfully completed unless extended before 6th November.
3. Does the employee have any protected characteristic that would make termination in the probationary period particularly problematic?
4. Has the employee been made aware of concerns regarding their performance/conduct in the probationary period? If so, is it documented? It would be particularly awkward if they have been told what a fantastic job they are doing for your Day Nursery, Pre-school or Out of School Club if you then decide to terminate in the probationary period.
5. Has the employee whistleblown, complained about a statutory right (i.e. National Minimum Wage, Health and Safety) before the end of the probationary period? i.e do they have the right to claim automatic unfair dismissal?
6. What is the employee’s notice pay in the probationary period? That’s the notice between the employer and employee.
7. Do you have the right to pay in lieu/use garden leave? Will that be preferable to the employee working their notice after you have advised them you have let them leave in the probationary period.

Always seek advice from someone who is trained and qualified in Human Resource Management before terminating someone’s employment in the probationary period. Our adhoc support calls can provide you with guidance as to your proposed course of action.