£4.5m Awarded to Employee Dismissed During Probationary Period

June 11, 2024

By Nicole Brendel

A recently published Employment Tribunal case is a dramatic reminder to employers that dismissing an employee during their probationary period is not without risk. Our employment team examines the case and looks at the lessons to be learned.

The Background

In the Employment Tribunal case of Wright-Turner v London Borough of Hammersmith and Fulham and another, the Claimant suffered from ADHD and was later diagnosed with PTSD after being involved in the response efforts to the Grenfell Tower disaster. She started a role with London Borough of Hammersmith & Fulham as Director of Public Services Reform. Upon her line manager becoming aware of her ADHD diagnosis, her line manager’s attitude towards her changed.

The Dismissal

The Claimant’s initial probationary period was 6 months. After this 6-month period had passed, the Council tried to extend the probationary period by 3 months, and even backdated a letter extending the Claimant’s probationary period to give the impression (wrongly) that the probationary period had been extended before the initial 6 months was up. Around the end of the extended probationary period, when the Claimant tried to raise a grievance, the Council backdated a dismissal letter to make it look as if they had dismissed the Claimant before she had raised a grievance.

The Decision

It was found that the Council had discriminated against the Claimant because of her disability. Of particular interest, the Tribunal decided that the Council’s decision to extend the Claimant’s probationary period (and their attempt to do so after the initial expiry of the probationary period) was an act of disability discrimination.

The Award

The compensation awarded was £4.5 million. Most of this was made up of loss of earnings and pension. The size of the award was reflective of the fact that the Claimant was a very high earner and had good pension entitlements, but she was also awarded a significant sum for injury to feelings, personal injury and aggravated damages because of the discrimination that she had suffered and the effects which this had on her health and career prospects.

It is worth noting that most successful Employment Tribunal claims result in far less compensation being awarded to Claimants, and this was a truly exceptional case. However, it should still be a cautionary tale for employers.

The Lessons

The lessons employers can learn from this case are:

• Dismissing an employee for failing to pass their probationary period is not risk-free. Although employees can only bring unfair dismissal claims once they have completed two years’ employment, it is important to remember that they can still bring discrimination and whistleblowing claims right from the start.
• Be careful when dealing with employee disabilities during probationary periods. Be aware that, if an employee is disabled, you may need to make reasonable adjustments to your application of probationary periods.
• Word your employment contracts carefully and clearly when referring to probationary periods.
• If you want to extend an employee’s probationary period, make sure that you do so in writing and before the end of their initial probationary period.
• If the Labour Party wins the upcoming general election, it is proposing some significant changes to employment law (we have covered these here). One of these proposed changes is that employees will be able to bring unfair dismissal claims from their first day of employment, but subject to employers still being able to dismiss within a probationary period. This is going to make the drafting of your probationary period clause in employment contracts even more important.

If you require assistance or advice on probationary periods or similar employment matters, please get in contact with a member of our employment team, Nicole Brendel, on 029 2082 9132 or nbrendel@darwingray.com to see how we can help you.