Claimant was dismissed during the probation period and argued that it was automatically unfair relating to bereavement leave. The Tribunal dismissed the claim.

The claimant commenced work for the respondent in July 2024 with the employment ending in October 2024. The claimant signed the contract which also referred to policies.  The probation aspect stated that the claimant was subject to a probation period of nine months during which period his progress would be monitored.

A pattern of lateness developed with the claimant. The claimant insisted he had not been late, yet it appeared he had been spoken to by a number of managers about it.  There was also a pattern of leave with 7 days taken in August for special leave to manage an emergency with his mother in India, 15 days in August/September relating to his mother’s health.  Most of this was covered through various forms of agreed leave but there were 3 days which were unauthorised.

There was a probationary review in early October where the lateness and absences were put to the claimant.  It was considered whether probation would be extended but in light of the lateness and absence it was found that that would be insufficient.  As a result, the respondent made the decision to terminate the employment.  No right to appeal was initially given in the written correspondence but was subsequently given in later correspondence.

The claimant brought a claim for unfair dismissal and stated that he had been subject to race discrimination.

The claimant made the argument that it was automatically unfair dismissal and fell within a category meaning that the one years’ continuous service was not required.  However, this related to parental bereavement leave.  The respondent argued that this was only for the loss of a child and not relating to a parent.  However, Article 85A of the legislation refers to dependant rather than just a child.  The Tribunal found that interpreting it as only referring to a child would be too narrow.  However, that did not mean the case was successful as it had to be shown that the dismissal was relating to that statutory entitlement.  The Tribunal found that there was quite a generous period of leave given to the claimant and in looking at the evidence that there was no causation between the statutory right and the decision to terminate the contract. As a result, the unfair dismissal claim was dismissed.

In terms of the race discrimination claim – the Tribunal considered the interactions between the respondent and claimant and found that there was insufficient evidence shown from the claimant to shift the burden onto the respondent.  The claimant sought to use a comparator but there were not the same issues in terms of lateness and unauthorised absence and the Tribunal found that there was nothing to show that the white comparator received favourable treatment.

The Tribunal provided an interesting view in terms of the legislation which states that dismissal relating to parental bereavement leave would be automatically unfair but the explanatory aspect within the legislation refers to dependants rather than solely children.  The Tribunal decided to take the broader approach and that may be useful for employers to be aware of going forward. Despite that broad approach, it did not change the outcome as the claimant was unable to demonstrate that the dismissal had been because of availing of that statutory right.

NI Tribunal decisions are available on the OITFET website.