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Can I really challenge a dismissal if I have less than two years’ service?

Published 28 October 2021

It is important to make a good early impression in a new job because the consequences can be serious if it’s alleged you failed to do so.

Family support worker Ashleigh was devastated when she was fired just over six months into her role.

A fortnight earlier delighted Ashleigh had been informed she had successfully completed her probation period - before being dismissed for alleged poor performance.

Distraught Ashleigh believed the decision was unfair, but because she had under two years’ service knew that she could not make a claim for unfair dismissal.

The circumstances of Ashleigh’s dismissal and background to her case provided great cause for concern.

Ashleigh contacted the Castle Associates Employee Support Centre and met with our representative to go through her case.

Ashleigh was physically attacked while out with a male service user who was known to be violent. She was left battered, cut and bruised. It happened shortly before she was dismissed.

Worried Ashleigh had previously warned management via email that one member of staff taking the service user out on their own was dangerous, as two members of staff should do it. Her concerns were ignored

Ashleigh was badly shaken up after being attacked and took a few days off work.

The day Ashleigh returned, she was immediately summoned to her manager’s office and suspended from work.

Shocked Ashleigh was told by the HR manager, who was also present, a number of complaints had been made against her by staff and relatives of service users.

Ashleigh was then handed a letter, which invited her to a disciplinary hearing the following day.

No evidence was provided with the letter. The allegation was listed as unsatisfactory performance that had led to complaints from colleagues and relatives.

At the disciplinary hearing Ashleigh was not given any evidence or details of complaints allegedly made against her.

She argued she was being treated unfairly because she had raised concerns about the supervision of a service user, and the company feared her submitting an injury claim after being attacked and hurt.

Ashleigh was dismissed following the hearing. Given her length of service she felt her dismissal amounted to a wrongful dismissal.

The disciplinary outcome letter did not notify Ashleigh that she had a right to appeal, so she raised a grievance.

The company said it did not accept grievances from ex-employees and the matter was closed, which led Ashleigh to contact Castle Associates.

Our representative contacted the employer and pushed for Ashleigh to be given the right to appeal her dismissal.

He pointed out that given the concerns Ashleigh had raised she can be considered a whistle-blower, as they were clearly about matters that posed a risk to the health and safety of staff and the service user.

Our representative argued Ashleigh had been treated unfavourably in being dismissed for being a whistle-blower, and it was a claim she could pursue regardless of her length of service.

Following an exchange of correspondence Ashleigh was eventually granted an appeal hearing.

Ashleigh’s desired outcome to the appeal was to have the dismissal removed from her record, to be allowed to leave and be given a guarantee of a reference.

At the appeal hearing our representative maintained Ashleigh can be considered a whistle-blower and that the concerns documented in the email she sent to management supported the assertion.

He said the disciplinary process that led to her dismissal was grossly unfair, as there was nothing in company policy to state a full and fair process will not be conducted for an employee with short service.

It was added that it was good practice for an employer to conduct a fair disciplinary process even for employees with less than two years’ service.

Following the appeal hearing there was some discussion and negotiation and Ashleigh later agreed a settlement agreement she was delighted with. By the time the agreement was signed, Ashleigh had started a new job.

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For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 

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