Dealing with the early threat of dismissal in a new job.
Published 26 January 2022
Shannon was new in her role and making a good impression when things took a dramatic turn for the worst.
The PR manager was just seven months into her job, and had just passed probation, when she was informed she had underperformed for many months. As a result the employer was now going to consider dismissing her.
The company did not have a dedicated performance management policy and dealt with such concerns using the disciplinary procedure.
Shannon was understandably concerned. She knew an employee with less than two years’ service cannot make a claim for unfair dismissal.
Shocked Shannon questioned why she had not been made aware of concerns about her performance and had instead only ever been given positive feedback. He queries were brushed aside.
Shannon was invited to a disciplinary hearing to face an allegation of poor performance. No evidence or specific details of poor performance were provided with the invite letter.
Worried Shannon contacted the Castle Associates Employee Support Centre for help.
Shannon was at a loss to explain to our representative the way in which she was being treated.
But a crucial detail emerged when our representative quizzed Shannon about the background to the case.
Shannon was involved in a minor road traffic accident, which triggered her anxiety about a serious car crash she was involved in a few years earlier.
She had suffered with an anxiety disorder ever since, and been prescribed medication and undergone counselling
The collision Shannon was involved in happened shortly after passing her probation and it resulted in her taking just over a week off work.
During her return to work interview, Shannon explained to her manager she had suffered with anxiety long-term.
Shannon was hesitant about revealing the information, as the workplace was very much an environment in which those who were mentally strong appeared to thrive.
Stunned Shannon was told her performance was below par just days after that return to work interview. The timing seemed much more than just a coincidence.
As Shannon had suffered with anxiety for well over a year it can be considered a disability in accordance with the Equality Act 2010.
This is significant, as dismissal of an employee with under two years’ service can be found to be automatically unfair e.g. if it relates to a disability.
It was reasonable to assert that based on the evidence Shannon was being treated unfairly because of her disability.
As a result a grievance alleging disability discrimination and unfair treatment was submitted to the employer.
In the letter our representative requested the employer address the grievance as a priority and suspend the disciplinary process in accordance with section 46 of the ACAS Code of Practice.
The employer refused to do so and insisted it would deal with both matters at the same time, and hear the grievance first.
Prior to the hearings our representative requested a range of information from the employer, which he believed would help Shannon’s case. It included:
- Performance feedback from her monthly one-to-ones, which was all positive.
- Evidence of poor performance, but none was provided.
- The probation policy, which made it clear any concerns should be raised immediately with the employee.
- The notes of the return to work interview showing Shannon discussed her anxiety.
- The equal opportunities policy, which made clear the employer’s zero-tolerance approach to any form of discrimination.
The information was used to argue the company was aware Shannon had a disability and as a result of it, it had treated her unfavourably and in breach of it policies.
Shannon was understandably desperate to leave but did not want to do so without securing another job. Her desired outcome to the grievance was to keep her job without any sanctions so she could continue to look for work while still in work.
Following the grievance hearing the company director who heard the case stopped the disciplinary hearing and pledged to support Shannon, which the company did.
It meant that rather than leave as planned, Shannon stayed with the company and flourished which eventually led to a promotion to a more senior position.