Night worker dismissed during probation for failing to carry out patrols: claims of whistleblowing and disability discrimination rejected

What this case shows in practice

This case highlights the challenges faced by employees in probationary periods, particularly those in lone-working night roles. The claimant, a night worker at a homeless hostel, was dismissed after only four months for failing to carry out mandatory building patrols and being unresponsive to clients. He argued that his dismissal was automatically unfair because he had raised health and safety concerns (a protected disclosure) and that he was discriminated against due to a knee injury that he claimed amounted to a disability.

The tribunal carefully examined the timeline. The claimant had been suspended and investigated for conduct issues before he made his whistleblowing complaint. The decision to dismiss was based on the investigation findings, not on the protected disclosure. The tribunal also found that while the claimant's knee injury was a disability, the employer did not know about it until shortly before the dismissal, and there was no evidence that the disability influenced the decision.

What the losing side could have done differently

For employees, this case underscores the importance of understanding the limits of whistleblowing protection. Raising a concern does not create immunity from dismissal for unrelated misconduct. The claimant might have benefited from ensuring he complied with all work requirements, particularly safety patrols, and from documenting any adjustments he needed for his knee condition earlier.

For employers, the case shows that a fair process during probation can withstand scrutiny. The respondent conducted a thorough investigation, held a probationary review hearing, and allowed the claimant to appeal. However, the tribunal noted that the employer could have done more to consider the claimant's disability once they became aware of it, but in this instance, the dismissal was not tainted by discrimination.

Why the result matters for similar claims

This decision reinforces that employees with short service face a high bar in unfair dismissal claims unless the reason is automatically unfair. It also clarifies that a protected disclosure does not automatically render a dismissal unfair if the employer has a separate, genuine reason. For those considering similar claims, the key is to establish a direct link between the disclosure and the dismissal, which was absent here. The case also serves as a reminder that disability discrimination claims require the employer to have knowledge of the disability at the relevant time.