It is a common misconception that an employer may freely dismiss employees during their probationary period. While the threshold for dismissing an employee during probation is somewhat lower than it is for permanent employees, probationary employees are still protected by the provisions of the Working Environment Act.
Dismissal during the probationary period must de based on the employee’s adaptability, professional competence, or reliability
The protection against dismissal for employees serving a probationary period is set out in Section 15-6 of the Working Environment Act. Under this provision, a dismissal during the probationary period must be justified by the employee’s lack of adaptation to the work, insufficient professional competence, or lack of reliability.
An employer may not expect ideal performance from an employee during the probationary period. However, the employee may be expected to perform at an average standard, while the employer must take into account the employee’s limited work experience. At the same time, the employer may impose strict requirements regarding punctuality and compliance with instructions concerning assigned tasks.
If the dismissal is based on circumstances other than the employee’s adaptability, professional competence, or reliability, the general requirement of objective justification set out in Section 15-7 of the Working Environment Act applies. This may be the case, for example, where the employer is required to implement a workforce reduction.
The employee must have received adequate training and follow-Up
A key factor in assessing whether a dismissal during the probationary period is objectively justified is whether the employee has received adequate training, guidance, and follow-up.
The extent of the training required will depend on the nature of the position and the employee’s prior experience. If the employer cannot document that feedback and guidance have been provided, the dismissal may be held invalid.
Accordingly, employers who observe that an employee is struggling to perform in the role should provide ongoing written feedback and guidance, or conduct follow-up meetings and keep written records of those meetings.
Employers must comply with the procedural requirements of the Working Environment Act
If an employer intends to dismiss an employee during the probationary period, the procedural requirements of the Working Environment Act must be followed. Among other things, the employer must invite the employee to a consultation meeting pursuant to Section 15-1 of the Working Environment Act before making a dismissal decision.
In addition, the notice of dismissal itself must comply with the formal requirements set out in Section 15-4 of the Working Environment Act (WEA).
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Martin Edelsteen Woll
mwoll@melo.no
+47 414 87 832
