Failure to Allow Probationer to be accompanied at Dismissal Meeting

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There is a common misconception regarding procedure when dismissing a probationer compared with dismissing a non-probationary employee.

While an employee with less than two years’ service is not able to bring a basic unfair dismissal claim, there are several other claims open to them including those related to the right to be accompanied.

The following case is a good example of this.

In Collins v ILC Manchester Ltd t/a International Learning College, the employer lost an employment tribunal case for not allowing Mr Collins to be accompanied at a meeting during which he was told that he was being dismissed.

Mr Collins started working as a tutor at ILC on 26th March, 2012. ILC alleged that his performance was not to their required standard, his attitude was poor and also his timekeeping.

On 7th June, 2012, whilst still in his probationary period, his manager and an HR representative went to his room without any prior warning to inform him that his employment was to be terminated. Mr Collins asked for an adjournment of the meeting to enable him to find someone to accompany him but his manager told him that this was not necessary and informed him that his employment was terminated.

Mr Collins appealed against this decision and also raised a grievance about his manager’s refusal to allow him to be accompanied at the meeting, both of which were unsuccessful.

He therefore raised a claim in the employment tribunal claiming that his employer failed to allow him to be accompanied at a disciplinary hearing which was contrary to the Employment Relations Act, 1999. Section 10 of this Act gives a worker the right to be accompanied at a disciplinary hearing following a “reasonable request”.

The Tribunal considered in detail whether or not the meeting was a “disciplinary hearing” which triggered his right to be accompanied. Section 13 of the Employment Relations Act 1993 defines a “disciplinary hearing” as a hearing that could result in:
  • The administration of a formal warning to a worker by his employer;
  • The taking of some other action in respect of a worker by his employer; and
  • The confirmation of a warning issues or some other action taken.
The employee argued that it was a disciplinary hearing whilst his employer argued that the decision to dismiss had already been made and the meeting was simply to communicate that decision to him and so therefore did not meet the definition of a “disciplinary hearing”.

The Employment Tribunal concluded that ILC should have allowed Mr Collins to be accompanied at the meeting on 7th June and that the Employment Relations Act 1999 did not intend to allow an employer to deny a worker the right to be accompanied by predetermining the decision to terminate employment and then meeting with the employee to inform him of that decision.

The Tribunal emphasised the fact that matters of a disciplinary nature regarding his performance, attitude and timekeeping had been raised with Mr Collins before the meeting and it was possible that he could have put forward a reasonably compelling argument at the meeting which might have forced his manager to reconsider her decision or at least defer the decision to dismiss him.

The Employment Tribunal therefore awarded in Mr Collins’ favour.

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