Fri 31 May 2024

£4.5 million award for dismissal during probationary period

A reminder that dismissing during a probationary period is not risk free.

Wright-Turner v London Borough of Hammersmith and Fulham and another is a disability discrimination case decided in 2021. However, it is only recently that the remedy judgment was handed down, awarding the claimant just over £4.5 million. Of note in this case, as well as the level of the award is the fact that the claimant had only been employed for nine months. Her initial probationary period was six months but this was extended by a further three months, the dismissal coinciding with the end of the extended  probationary period. One of the areas in which the employer came under criticism was their failure to follow "the provisions or spirit of the Probationary Procedure".


The claimant suffered from ADHD and having been involved in the response to the Grenfell Tower fire had been diagnosed with Post Traumatic Stress Disorder ("PTSD") shortly before taking up her role with the respondent as Director of Public Services Reform. This role was part of the Senior Leadership Team and the claimant was, up until that point, a successful senior civil servant.  

As time went on, the claimant's physical and mental health deteriorated, all the while she was working extremely long hours and was clearly stressed. Her line manager's perception of her was impacted by her finding out that the claimant had ADHD. Shortly before the end of her probationary period the claimant was invited to a meeting where her ADHD was discussed. She subsequently had a panic attack while out with colleagues later that day, ended up in A&E and was found to be traumatised and suicidal. She was signed off work and the respondent was advised that the claimant's GP recommended that she have no contact with work during this time. 

What followed was wholly inappropriate behaviour on the part of the respondent, including the back dating of a letter extending her probationary period to make it look like it had been written before that period expired (it had not); and back dating the letter of dismissal to make it look like it had been written prior to the claimant raising a grievance (once again, it had not).  

When the claimant made claims to the Employment Tribunal it found that she had been harassed, that extension of the probationary period amounted to direct disability discrimination and discrimination arising from disability, and that her dismissal was also direct disability discrimination and discrimination arising from disability. The majority of the award was based on past and future loss of earnings (approximately £2 million) and this was grossed up for income tax purposes. The ACAS uplift amounted to £270,000. Further amounts were awarded for non-pecuniary losses including injury to feelings.

What can employers learn from this?

This is an unusual case - the claimant was a high earner with a good pension, she was treated particularly badly - in a manner that the majority of employers would not permit - and it had a significant detrimental impact on her health. What it does highlight though is that, currently, dismissing during or at the end of a probationary period, still carries a risk where there is any element of discriminatory behaviour involved. The amount that can be awarded in these circumstances can also be significant given that claims for discrimination are uncapped. Employers should also ensure that they follow any rules around managing or extending probationary periods, or dismissing during or at the end of it, carefully.  

If we see a change of Government following the general election on 4 July, one of the high-profile changes proposed by the Labour party is the removal of the qualifying service requirement for unfair dismissal. This is caveated by an explanation that fair dismissals will still be possible for reasons including "probationary periods with fair and transparent rules and processes". How this will operate in practice will depend on the detail of any subsequent legislation and we will report on this further once more is known.


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