Probation period unfair dismissal

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Hello, I’m just looking for some advice. My dad was diagnosed with stage 4 squamous cell carcinoma of the right mandible in January 2024. He had an operation to remove the tumour and his right jaw bone and replace with part of his fibula in February. He recovered well from this operation however also needed some chemo and radiotherapy for 6 weeks which is due to finish in 3 days. Throughout his difficult treatment the main thing which has kept him going and motivated is the thought of going back to work. 

My dads a long distance lorry driver and started with the company in November 2023. He had a 12 month probationary period. He previously worked with the same company from 2018-2021. He then had to go off sick from the end of January 2024 due to tiredness due to his tumour and In preparation for his major surgery. He has been on statutory sick pay since this. Today he went on his emails to find a letter attached in which it said the company were terminating his employment with one weeks notice. Are they allowed to do this even though my dads time off work has been due to health reasons completely out of his control and as I said the thought of going back to a job he absolutely loves has given him so much motivation with his treatment and to continue to get better. 

is there anything we can do ? Does he have any grounds to challenge this even though he was on his 12 month probationary period 

  • Hi Alys

    Thank you for getting in touch. My name is Linda and I am a Work Support Adviser at Macmillan Cancer Support. I can advise on your Rights at Work if you or someone else has been affected by Cancer.

    I am sorry to hear about your dad’s cancer diagnosis and that his Employment has been terminated. Has his Employer given a reason for the termination of Employment ? An Employee is unfortunately not protected from unfair dismissal until they have at least 2 years service.

    However, as your dad has a cancer diagnosis he is considered to have a disability under the Equality Act 2010 or Disability Discrimination Act 1995 (Northern Ireland). This means his employer should not discriminate against him because of his cancer. His employer is also under a duty to make reasonable adjustments to help him at work. This protection is lifelong and does not depend on an active cancer diagnosis.

     

    Reasonable adjustments remove or minimise disadvantages experienced by disabled people. Employers must make reasonable adjustments to ensure disabled people are not disadvantaged in the workplace. They should also make sure policies and practices do not put disabled people at a disadvantage. An example of a reasonable adjustment may be allowing your dad to return to work on a phased return to gradually build up his hours.

    His Employer could have considered an extension to his probation period to allow them more time to assess his ability to undertake his job to the required standards.

     Has your dad continued to provide Fit Notes to his Employer stating the reason for his absence ? I also wondered if your dad is a member of a Trade Union who can support him at work ?

    Monitoring Sickness Absence

    Long Term Sickness Absence

    Companies do have responsibility to manage sickness absence and a level of absence may trigger concern and a reason to take further action. Examples of this might be: 3 absences in any rolling 3 month period, 5 absences in a rolling 12 month period, 11 days in a rolling 12 month period or apparent patterns or trends in absence. Sometimes there is a formular for example, the Bradford Factor:  https://www.bradfordfactorcalculator.com/

    Companies therefore often have managing attendance and managing absence procedures which require interviews after a number of days absence (they have a hit a trigger point.)   An employee would then be aware of what to expect.  This can be advantageous to both parties. Sickness absence triggers can also be useful in showing the employer where an employee may have reached the point of dismissal.

    It is important for employers to maintain appropriate contact with employees on sick leave. However, there should be a balance between demonstrating concern and maintaining sufficient distance so that the employee does not feel pressured. Contact could, for example, mean a regular telephone update, but an overbearing employer could cause some distress and might amount to ‘harassment’. Although, it could be expected that the employee is updated on developments at work that may have an impact on the employee (eg. redundancy) or meetings or social events. 

    However, managing long term sickness absence does require a more sensitive approach. It is important to look at the reason for the absence.

    Firstly, if an employee’s absence due to ill health is as a result of the employer being the cause  it would normally be expected to accept a longer period of absence than would otherwise be reasonable for the purposes of unfair dismissal law. Ill health caused by the employer might at risk of compounding the potential risk of ‘personal injury.’

    Secondly, if an employee has a disability, an employer should look to provide any reasonable adjustments to ensure that they are not at a disadvantage in the sickness monitoring process because of their disability. Example of adjustments might be that meetings could happen in a place convenient to the employee. They may need more notice of meetings or to be accompanied by someone other than a trade union representative or a work colleague. However, provided an employer has shown that they have been flexible, they cannot be expected to hold off making a decision indefinitely and it is possible for those meetings to go ahead without the person in attendance.

    In respect to recording the number of sickness absences, if an organisation uses trigger points to monitor this, they could provide reasonable adjustments by:

    • not counting some or all sickness absence related to a disability towards those trigger points
    • increasing the number of absences that would trigger a review
    • choosing to record a disability related absence separately to other types of sickness absence. It might be called disability leave or disability-related sickness absence for example.

    If separate categories are not used, employer should exercise care in analysing data relating to that individual and look to the reasons for the absence before taking any decision on the basis of the data collated.

    Disciplining for sickness related absence could be discriminatory.  Absences should only be taken into account if the employer is satisfied that all reasonable adjustments have been made. An employer does not have to make ‘any’ adjustment if it is not reasonable, but they must make sure they are not treating the person badly or putting them at a disadvantage because of their disability. 

    An example of possible discrimination by an employer might be if the employer does not offer a disabled person a promotion due the warnings, they have received for absence attending hospital appointments.  This could be an example of ‘Discrimination Arising from Disability’. The absences could have been recorded differently to standard absences.

    Another example could be where an employee needs time off for cancer treatment and recovery and their employer agrees that they can take this time off as ‘disability leave’ (which would be a reasonable adjustment) and then return to the job. Later, the employer uses attendance as one of the criteria for selection for redundancy. The employer discounts their period of ‘disability leave’ so that they are not put at a disadvantage during the selection process.

    Reference: Thomas Rueters Practical Law 28/01/22

    ACAS 1/3/2023

     

    You may find it easier to call us on 0808 808 0000 option 1, option 2, option 3 to allow us both to gather more information on dad’s situation. The Work Support Team are available Monday – Friday 8am – 6pm.

    Kind Regards

    Linda

     

    Remember you can also speak with the Macmillan Support Line team of experts. Phone free on 0808 808 0000 (7 days a week, 8am-8pm) or by email

     

     

  • Hi Linda, Thank you very much for your reply. No they didn't. He received a letter and an email stating that in accordance with his 12 month probationary period clause they are terminating his contract with one weeks notice. So no explanation as to the reason of ending his employment. He previously worked in the company rom 2019-2022. And returned to work for them in November 2023 after going to work for another haulage company. Throughout his employment with them hes had no previous absences from work.

    I feel as you say they should have at least had a conversation to raise any concerns that they had. We have heard nothing from them at all until he received this email yesterday. He has sent in all of his sick notes which stated on there he was off due to treatment of his cancer and the sick notes have covered the period he has been off (since the end of january 2024) and he has been receiving statutory sick pay.

    He is so down about this and the thought that he has lost his job. We sent an email today outlining we would like to appeal their decision to terminate his contract and we received a reply this afternoon stating they will get back to us as soon as possible. He is not currently with any trade union I will mention to him about joining one if it wouldnt be too late?

    Thank you again

    Alys

  • Hi Alys

    Thank you for your reply. It certainly sounds as if your dad is having a difficult time with his Employer.

    It is important that an Employer does not discriminate against an Employee on the basis of their disability. Termination of an Employment without following a fair process could potentially be considered to be disability discrimination against your dad.

    I am pleased that your dad is appealing the decision and hope that a meeting is arranged soon.

    One of the things an employer has is a legal duty to consider is making reasonable adjustments for a disabled employee to support them remain or return to work. It seems that perhaps this has not been considered for your dad. It is unclear what contact and support has been offered your dad whilst he is off sick and whether the employer has discussed the workplace adjustments he may require and discuss a reasonable expected return to work date. A failure to make reasonable adjustments is classed as disability discrimination and there is no minimum length of service requirements to bring a claim for disability discrimination at an Employment Tribunal.

    Please be mindful that there is a strict time limit to lodge a claim with an Employment Tribunal and this is 3 months less 1 day from the date of dismissal and/ or act of discrimination (for Northern Ireland it is 3 months). Your dad needs to ensure his appeal is heard quickly and if the decision to dismiss is not overturned, he would need to contact ACAS to commence Early Conciliation before the time limit runs out - https://www.acas.org.uk/early-conciliation.

     (For Northern Ireland it is The Labour Relations Agency https://www.lra.org.uk/ )

     

    The right to be accompanied in a meeting:

    If your dad is invited to an appeal hearing, then he has the legal right to be accompanied in a formal meeting with an employer (described in Section 10 of the Employment Relations Act 1999). Examples of a formal meeting would be a disciplinary, grievance, redundancy, performance, discrimination, sickness absence or a harassment matter.  Legislation states that the only types of person are able to accompany are:

    • A workplace colleague
    • An official employed by a trade union
    • A workplace trade union representative who is certified by a union to act as a companion.

    Under discrimination legislation, an employer needs to consider a disabled employee’s request to bring someone else for additional support – such as a carer.

    In addition, it may depend upon an employment contract saying that a partner or legal representative may be allowed. Otherwise, it would be for the employer to decide.

    An employee would need to make a ‘reasonable request’ to an employer and tell their employer the name of the companion and whether they are a colleague or a trade union representative. They would also need to give their employer enough notice so that they can make arrangements for the companion to attend the meeting. 

    The companion would also need to be given enough time to prepare for the meeting.

    https://www.acas.org.uk/grievance-procedure-step-by-step/step-4-the-grievance-meeting

     

    It may be beneficial for you or your dad to call our team to discuss his work issues in more detail as there are further questions we may need to explore. The Work Support Service can be contacted on 0808 808 00 00, selecting option 1, 2, then 3 - we are open Mon to Fri 8 am – 6 pm.

    You mentioned that your dad is not a member of a Trade Union. This is not mandatory but if he did wish to join a Trade Union it is important to check if they will assist with any pre existing employment concerns.

    There is further information on trade unions in the link below.

    https://www.gov.uk/join-trade-union

     

    Kind Regards

    Linda

     

    Remember you can also speak with the Macmillan Support Line team of experts. Phone free on 0808 808 0000 (7 days a week, 8am-8pm) or by email