Appeals During Probation

Should Employers Offer the Right to Appeal After a Probation Fail?

This is a common question that often arises with clients.

According to the ACAS Code of Practice, when a dismissal is related to conduct or performance, employees should be given the right to appeal (as well as the right to a companion at the meeting).

However, since employees cannot currently claim unfair dismissal within their first two years of service, many employers choose not to follow the ACAS Code during probation periods.

It’s important to note, though, that employees can still make claims for “automatically unfair” dismissal from day one of employment, as well as claims for discrimination.

If an employer is found to have dismissed an employee for one of these automatically unfair reasons and did not follow the ACAS Code, a judge could uplift any compensation awarded by up to 25%.

So, what are the pros and cons of offering an appeal during probation?

✅ Pros:

▪ It allows you to identify and correct any flaws in the process or decision-making, potentially preventing claims before they reach a tribunal.

▪ By following the full ACAS Code, you reduce the risk of any compensation award being uplifted.

▪ You demonstrate fairness by treating all employees the same, regardless of their length of service.

❌ Cons:

▪ An appeal can consume significant management time, especially when most straightforward probation fails carry minimal legal risk.

▪ To satisfy a judge that you followed the ACAS Code, you must also allow a companion at the dismissal meeting. This could lead to delays if the companion is unavailable.

▪ Allowing an appeal for one employee could create a discrimination risk if you don’t extend the same opportunity to all employees.

Given these factors, a more pragmatic approach for employers might be to refrain from offering an appeal as standard. However, if a complaint is made alleging that the dismissal was automatically unfair or discriminatory in nature, the employee could be invited to a meeting to discuss their complaint, with appropriate action taken as necessary.