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The battle to keep a job, with a tragic start and happy ending

Published 21 August 2019

The battle to keep a job, with a tragic start and happy ending

An employee on probation or with short service can feel completely helpless when facing the threat of dismissal.

If an employee is dismissed while on probation or when they have less than two years’ service they cannot make a claim for unfair dismissal. There are still some types of claim they can bring, regardless of how long they have been employed.

When Eve, an airport office worker, was invited to attend a disciplinary hearing 17 months into her job, she understandably feared the worse before contacting the Castle Associates Employee Support Centre for help. The allegation was underperformance during the probation period.

When our representative met with Eve she explained that she had struggled at work after suffering the sudden and unexpected death of her spouse during her first month in the job.

She explained that the company was very supportive, but because she was new she felt that she had to return to work as soon as possible. Eve returned to work within a couple of weeks and found it difficult. She was diagnosed with depression and prescribed medication.

After six months in the job Eve attended a probation review meeting and was asked to explain her poor performance. She explained she had been diagnosed with depression some months earlier and was struggling.

The probation period was extended by three months after which it would be reviewed again, this did not happen. Eve later felt that she was performing well and she even received a number of positive emails from her manager praising her work.

Eve’s problem started when she pointed out a mistake in an instruction she was given by her manager. This was done in an email copied to another manager involved in the same matter.    

Although Eve was correct in the point she made, she got a curt response from her manager. She was then called into her manager’s office told she was underperforming during her probation period, suspended from work and invited to attend a disciplinary hearing.

Prior to the hearing our representative raised a formal grievance on Eve’s behalf. It was on the grounds that she was being treated unfairly and had suffered disability discrimination. As Eve had suffered with depression for about 12 months it can be considered a disability under the Equality Act 2010.

In the letter our representative requested that the disciplinary process be suspended in accordance with section 46 of the ACAS Code of Practice until after the grievance had been heard and resolved. The employer said it would hear the cases concurrently, which it is entitled to do. It arranged to hear both cases on the same day, with the grievance first.

Prior to the hearing our representative had requested information from the employer. It included all paperwork related to Eve’s probation, the probation policy, her full training record and evidence of any support ever put in place for Eve.

At the grievance hearing our representative argued Eve had what can reasonably be considered a disability that will inevitability have impacted on her performance and the company failed to provide appropriate support or make any reasonable adjustments.

He pointed out that the extended probation was never reviewed as stated, it was absurd to claim she was still on probation 17 months into the job, it was evident Eve’s performance had improved and she was not provided with additional training to address any apparent performance concerns. This went against the probation policy which stated underperforming employees will be supported and their performance reviewed before dismissal is considered.

The reaction of Eve’s manager the email was also raised of as a concern. The company postponed the disciplinary hearing in order to resolve the grievance.

Eve was later informed that her grievance was upheld. She returned to work for a new manager. Rumour had it that her previous manager went off sick after being quizzed about Eve’s grievance, before she eventually left the company.

“A reputation built on success”

For free 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. 0333 772 0611

A reputation built on success

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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