1)Can an employee get a disciplinary sanction during their probationary as well as a probationary extension?

Where an employee is failing to meet the employer's expectations, guidance should be given on the standards of performance and/or behaviour the employee needs to achieve. Where considered necessary, and only if the employer has a contractual right to extend the probationary period, the employer can notify the employee that their probation is being extended before the original probationary period expires. In doing so, the employer should advise the employee of the following:

• The reasons why the employer is unable to confirm the employee in post. The employee needs to be able to understand what aspects of their performance or behaviour are letting them down and, as a result, what they must do to prove themselves in the further period of probation.
• Any particular improvement that is expected of the employee and any identifiable goals they need to achieve (and by when).
• The date on which the employee's probation will now end. If the employer wishes to fix progress meetings during this additional period, the employee should be given the dates on which they will take place. The process of giving feedback should be maintained throughout the additional probationary period.

Where the employer does not have a contractual right to extend an employee's probationary period, the employer can invite the employee to agree to vary their contract to provide for one. An employee may be willing to agree to an extension if they consider this will give them the chance to remain in employment when to refuse is likely to result in their employment being terminated.

The employer can also issue a disciplinary sanction to the employee during the probationary period provided the employer follows any applicable rules within its disciplinary policy and procedure.

2)Should you give a right of appeal when ending employment during the probationary period?

The statutory dismissal and disciplinary procedure provides that an employer must notify the employee of the right to appeal against the decision to dismiss if the employee is not satisfied with it. However, in most cases, in the absence of any previous employment contributing to continuity, an employee will have insufficient continuous service by the time notice expires following the end of a probationary period to enable them to bring an ordinary unfair dismissal claim. For this reason, some employers will decide not to follow the statutory dismissal and disciplinary procedure in dismissing the employee during their probationary period.

However, employers should keep in mind the risk of claims for automatically unfair dismissal (for example, unfair dismissal for a health and safety reason), discrimination or any other claims which do not have a continuous employment requirement. As such, we would recommend that the statutory dismissal and disciplinary procedure is followed and that the right of appeal is offered.

Even where the employer is confident that the reason for dismissal is unrelated to any of the claims that can be brought without qualifying service, it is often advisable to follow some degree of procedure before dismissing an employee in their probationary period. Doing so will ensure that there is a paper trail setting out the employer's motivation for terminating employment, and this may help the employer to demonstrate the real reason for dismissal if the matter is challenged. Further, an employee may be less likely to bring a claim (for example, a discrimination claim) if they feel that they have been treated fairly.

3) If there is a contractual disciplinary procedure applicable to the employee during the probationary period and this is not followed when dismissing the employee, could this lead to an employer facing an ET claim for breach of contract?

Where there is a contractual disciplinary or capability procedure that applies to employees during their probationary period, a failure to follow a contractual procedure could certainly result in a breach of contract claim from the employee. It would be important, in the first instance, to carefully check the terms of the employment contract and the relevant disciplinary policy / procedure. Some procedures expressly state that they do not apply during an employee's probationary period, but this is not always the case.