Getting the right ending to a disciplinary process after a bad start.
Published 29 June 2022
We all like to make a good early impression on those who matter, but if you fail to do so in a new job it can have disastrous consequences.
Lenny worked for a large finance company before he was dismissed for poor performance at the end of his probation period.
He was left distraught by the decision, and felt that his poor mental health and strained working relationship with his manager was not given the consideration it deserved during the decision-making process.
Lenny had been diagnosed with Post Traumatic Stress Disorder (PTSD) as a result of childhood trauma. He made his employer aware of this at the outset of his employment.
As Lenny was dismissed after just six months, even though he felt it was unfair, he was not in a position to make a claim for unfair dismissal.
Employees only gain statutory protection against unfair dismissal after completing two years’ continuous service with the same employer.
Our representative reviewed Lenny’s case after he contacted the Castle Associates Employee Support Centre for advice on his options.
It appeared the employer had simply gone through the motions to give the impression of fairness, and it had not properly or fairly considered significant mitigating factors.
With the probation review outcome letter, Lenny received details of how he could appeal against the decision to terminate his contract of employment.
Our representative held lengthy discussions with Lenny about the case and his options.
After doing so, he submitted an appeal on Lenny’s behalf against the probation dismissal.
In preparation for the appeal hearing our representative requested a range of information from the employer that he believed would help with the presentation of Lenny’s case.
That information included the probation policy, equal opportunities policy and other information that would help to show the employer was fully aware of Lenny’s PTSD.
After looking at the probation policy our representative made a further request for evidence of review meetings with Lenny, which the policy said should be carried out during the probation period. The employer was unable to provide evidence of any such meetings.
The most important thing in any appeal is the employee’s desired outcome and what they hope to achieve with it.
Lenny was clear he did not want to be reinstated. He was adamant he would pursue the case if a settlement agreement could not be reached.
Prior to the appeal hearing our representative had quizzed Lenny at length about his relationship with his manager. Lenny felt his manager had failed to support him when she knew he was struggling mentally.
At the appeal hearing our representative presented evidence he had requested and obtained from the employer, which he referred to in order to demonstrate it was fully aware of Lenny’s PTSD and poor mental health.
It was argued it provided evidence to show Lenny had struggled for a long time and it had undoubtedly impacted on his performance.
The hearing was told that despite this, there was no evidence of any meaningful support ever being provided by Lenny’s manager. A failure to implement any reasonable adjustments to help Lenny was also highlighted.
A reasonable adjustment is a change that must be made to remove or reduce a disadvantage related to an employee’s disability when doing their job.
Our representative pointed out a failure to make reasonable adjustments was one of the most common forms of disability discrimination.
The fact no performance reviews took place during the probation period as directed by company policy was used to maintain the process was unfair. This was because Lenny would not have been made aware of any concerns or given a reasonable opportunity to address them.
Following a comprehensive appeal presentation by our representative, he initiated a conversation about a settlement agreement.
The terms were not what Lenny originally asked for, but he was delighted with them.