July 18, 2020


When a person starts a new job, he or she may be subject to a probationary period. The probationary period is usually expressly written into the contract of employment and notice periods required on either side are often very short, perhaps one week or less. 

The employee may be measured against a series of goals to assess his or her performance in the role or the employer may simply wish to see if the employee is a good fit with the culture of the business. 

Failure to successfully complete the probationary period will tend to lead to performance management procedures being put in place or the employee being dismissed. It is important that an employer acts fairly and consistently in applying probationary arrangements. 

There have been a number of discrimination cases in which the employee was dismissed during her probationary period once her employer learned that she was pregnant, under the guise that it was somehow related to her performance or conduct.

There are a number of recent Tribunal cases that dealt with discrimination claims where employers dismissed employees who had told them that they were pregnant,

case 1

In the first case the employee was dismissed and told the “it was just not working out’ and that her employer was not obliged to give a reason” for the dismissal. The tribunal commented that evasive replies are often given when a person does not wish to make a candid admission as to the real reason for his or her actions. It found that the employee was discriminated against under S.18 EqA.

case 2

In this case the employee was dismissed on the precise date that her probationary period ended. The employee was dismissed because of her performance.  The Tribunal found that these performance reason were not sufficient to warrant dismissal.

case 3

In the final example the employee’s probation was extended and she wash put onto a Performance Improvement Plan.  She had never had any issues raised regarding her performance prior to this. 

An employment tribunal found that the employer’s actions constituted unfavourable treatment under S.18 EqA.  If an employer has genuine concerns about an employee’s performance or conduct during the probationary period, it should keep accurate records of those concerns. It is also important that the employer makes the employee aware of the concerns as and when they arise and gives the employee an opportunity to improve her performance.

Therefore, all employers must be extremely careful when they are looking to dismiss an employee during their probation period: when they know that the employee is pregnant.  The reason for the dismissal must be genuine and be able to be supported by evidence should the issue go to an Employment Tribunal.

Should you require further advice or support over this matter please call us on 0141 319 8191 or e-mail us on enquiries@lbjconsultants.co.uk

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