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It’s often said that ending the contract of an employee with less than two years’ service is a risk free dismissal. Even some HR service providers play down the risk and give advice about letting someone go following a less than ideal process or at times, no process at all.

But is it true?  Can you dismiss someone with less than two years’ service without a proper process AND without risk?

Not on your nelly!  Here is why.

There are in total 9 protected characteristics that offer day 1 rights.  This means that any employee who fits or can show they fit in to one of these protected characteristics could take a case for unfair dismissal if you end their contract within two years.

The protected characteristics are:

 

A recent case has shown just how seriously protected characteristics should be taken. 

Carr v Weston Homes PLC

The Claimant was an employee with type 1 diabetes who was left feeling “intimidated, under the spotlight and concerned for her job” has been awarded £14,000 for disability discrimination and harassment.

An employment tribunal judge ruled that from the outset of her two months’ employment as a fleet administrator at Weston Homes, the Claimant was “humiliated” and “highly embarrassed” as a result of the treatment she received.

Incidents included an email conversation following a staff lunch attended by the Claimant, her line manager and Events Co-ordinator.  After the Claimant said she would not be drinking alcohol due to having diabetes, alerting the pair for the first time to her condition, her line manager and Events Co-ordinator were involved in an email conversation, during which one message from her line manager said: “Let’s hope so… as long as she doesn’t go into hypoglycemic [low blood sugar level] shock anytime soon!!!” followed by a ‘shocked face’ emoji.

When the Claimant later met with HR she was asked detailed questions about medication and keeping well strategies.

The judge ruled that these questions were “excessive, invasive and heavy handed.”  In addition to this and other incidents, the Claimant was invited to a meeting following an allegation that a task had not been done. The tribunal heard that the Claimant did not know the reason for the meeting and was told her employment was not going to work out given that she had been spoken to several times and the company had seen no improvement. The tribunal heard that the Respondent were reluctant to go into detail of what had happened or what was wrong with her performance.

Note: that this lady had two months’ service with the Company but that didn’t stop the Judge ruling that they’d been guilty of disability discrimination and harassment. 

 If there were genuine concerns with her performance during probationary period, these should have been correctly dealt with and documented.  The fact that the Company were “reluctant” to go into detail of what had happened would indicate that they didn’t have any genuine concerns in the first place. However, if they had, then they had a clear process they should have followed.

The Simple Take is:  Complete probation reviews, follow a process and most importantly, get advice.

If you need support with any of the issues described here or any other HR challenge contact one of our HR Experts on 01487 815720 or email [email protected]

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