Question: An employee worked for a company for 9 weeks and was on a 6 month probationary period. He was told on his penultimate day that there was a meeting tomorrow to discuss a change in his working hours. This meeting turned out to be a performance review that had been brought forward. He was dismissed the next day. No attempt had been made by the employer to implement setting of targets or further reviews and he was not allowed to appeal. He was unable to gain representation because of lack of notice and no minutes were made of the meeting. His contract stated that the company use the ACAS procedures and there was no other agreement concerning probationers. The employee also has learning difficulties which the employer was aware of and only received sporadic training that was inadequately delivered, leaving him to pick up what he could along the way.
Answer: Unfortunately an employee who does not have 2 years continuous service with the employer cannot bring a claim for unfair dismissal generally. Although there was failure to follow fair procedures and their own contractual procedures, there is little redress. You have a potential breach of contract claim if they failed to follow these procedures but the reality is that the value of any such claim would preclude it from being a practical solution – you can only recover damages resulting directly from the breach. However, the learning disability may be covered by the provisions of the Equality Act 2010 (The “Act”) and a claim for disability discrimination may be possible. There is no qualifying service necessary. As well as showing that the disability is a condition as defined under the Act it would be necessary to show that it was the reason for dismissal. An employer is under a duty to make reasonable adjustments to an employee’s job to accommodate a disability so as to create a ‘level playing field’. If adjustments could have been made to assist the employee in reaching the required standard then it would be possible to bring a claim against the employer.
We have offices in the Christchurch, New Milton and the New Forest. Our Employment team also cover Bournemouth and Poole. For a free initial chat, please call 01202 499255 and Kate or a member of the team will be happy to discuss any questions that you may have.