The claimant was dismissed as a firefighter at the end of his probationary period.   The Tribunal noted the facts as unusual considering that at the end of the probationary period an individual would not normally have the two years’ continuous service for unfair dismissal (one year in Northern Ireland).  The unusual facts arose as the claimant had been working as a Stores Technician from 10th April 2017 for the respondent and at the same time was a part-time firefighter.   In June 2018 he was selected for a full-time firefighter role and he was given a new probationary period of six months.  This was then extended for three months and extended again as a result of sick leave.   Therefore, when a decision was made in May 2019 the claimant had just achieved the two years’ service requirement.

The respondent, despite the two-year period, stuck to the probationary procedure within the contract of employment.  Therefore, they provided a decision at the end of the probationary period with no dismissal meeting and no right of appeal.

During the claimant’s employment there had been a number of issues that had arisen.  One of these was giving the ‘V-sign’ to one of the Watch Managers which was ‘presumably in jest’.  There was also a situation where the claimant had to be given a direct order to stop flirting with a woman who ran flats that the fire service had been called to.   Additionally, there were concerns about inappropriate language such as using ‘spastic’ in an offensive context and ‘jokes’ which were regarded as being racist and sexist.  There had been periodic reviews where these issues were raised but the Tribunal stated that the Respondent ‘underplayed’ their significance. Despite increasing the monitoring of the claimant, the issues persisted.  The claimant slept (as permitted) but with ear plugs in meaning he missed a call; he had used the ‘f word’ at a client’s house and he said he had ‘forgotten’ how to use a major pump.

A series of minor issues continued throughout the claimant’s employment culminating in the end of his probationary period.  At this point, there was a short meeting with no discussion and the claimant was issued with a dismissal letter.   The claimant sought to appeal but the Head of HR stated that it was not relevant as he had failed in his probation period.  On the same date of the dismissal, a public interest disclosure was made stating that the claimant did not have enough time in the probation period.  The head of HR advised that it should be investigated.  It was thoroughly investigated with the common theme being that the claimant was generally immature and did not appreciate the professional nature of the job.

The respondent argued that the claimant had been dismissed on the ground of capability, or alternatively for conduct.   The issue was that the claimant was not dealt with under a capability procedure but simply with the contractual provision relating to probation.   As he had the requisite service this then gave him additional rights.   The Tribunal noted that the procedure should have been adapted with a final hearing to review the evidence and a right to appeal to another senior member of staff.   Indeed, it is well-established that the lack of such a hearing is by itself enough to render the dismissal unfair. Accordingly, the claim for unfair dismissal was upheld.  Due to the failure to follow the correct procedure there was an uplift of 15% in the compensation.   That being said, there was only a 30% chance that the decision would have been different had the right procedure been followed so a Polkey reduction was made.

Practical Lessons

This case demonstrates the change in rights that comes after having the requisite period of continuous service in relation to unfair dismissal.  As seen in this case it is 2 years whereas in Northern Ireland it is only one year.  The law in Northern Ireland gives much more protection for employees and employers should be cognisant of this when they are seeking to end employment at the end of a probation period.   A probationary period does not exist outside of the statutory law meaning that once the requisite period has been met the proper procedures must be followed in making a decision to dismiss.
https://www.gov.uk/employment-tribunal-decisions/mr-daniel-phelps-v-dorset-and-wiltshire-fire-and-rescue-service-1404180-2019