Healthcare assistant dismissed during probation: discrimination claims fail
A healthcare assistant who was dismissed during his probationary period for sickness absence and conduct issues has lost his claims of sex and disability discrimination against Kent and Medway NHS and Social Care Partnership Trust. The tribunal found no unlawful discrimination, failure to make reasonable adjustments, or victimisation.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was employed as a healthcare assistant on a forensic medium security ward from November 2018.
- He was dismissed on 25 June 2019 for failing to pass his six-month probationary period due to sickness absence and conduct issues.
- The claimant had type 2 diabetes, psoriatic arthritis, and a mental impairment (anxiety/depression) which the tribunal found to be a disability.
- He alleged an assault by a female colleague on 13 December 2018, which was investigated but not upheld as a disciplinary matter.
- The respondent offered a modified shift pattern (four weeks nights/two weeks days) as a reasonable adjustment, which the claimant did not accept.
- The tribunal found no direct discrimination, failure to make reasonable adjustments, or victimisation.
Timeline
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Employment commenced
The claimant started permanent employment as a healthcare assistant, subject to a six-month probationary period.
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Alleged assault by colleague
The claimant reported that a female colleague, FT, punched him in the chest. FT admitted jabbing him in a jokey way.
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A&E attendance
The claimant attended A&E with chest pain and was diagnosed with a chest wall injury.
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GP fit note for PTSD
The claimant's GP issued a fit note stating he had PTSD, the first notification to the respondent of mental health issues.
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Occupational health report
OH recommended considering a temporary adjustment to night shifts to support the claimant's PTSD symptoms.
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Meeting with union
The claimant's union proposed eight weeks of night shifts; the respondent offered four weeks nights/two weeks days.
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Grievance lodged
The claimant lodged a grievance alleging discrimination and poor handling of the assault complaint.
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Probation meeting and dismissal
A probation meeting was held, and the claimant was dismissed for unsatisfactory attendance and conduct.
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Appeal hearing
The claimant's appeal against dismissal was heard by Ms French, who upheld the decision.
The legal issue
The tribunal had to decide whether the claimant was subjected to direct sex and disability discrimination, failure to make reasonable adjustments, and victimisation in relation to his employment and dismissal.
The outcome
The tribunal found that none of the claimant's claims under the Equality Act 2010 succeeded. The respondent had offered a modified shift pattern as a reasonable adjustment, which the claimant did not accept, and there was no evidence that the dismissal or other treatment was because of his sex or disability. The grievance and appeal processes were found to be fair. No compensation was awarded.
Lessons & takeaways
- Probationary periods allow employers to dismiss for poor attendance or conduct, provided they act reasonably and without discrimination.
- Offering a reasonable adjustment that the employee does not accept may still satisfy the employer's duty, especially if alternative options are discussed.
- Disability discrimination claims require evidence that the employer knew or ought to have known of the disability and that the treatment was because of it.
- Grievances about workplace incidents do not automatically protect an employee from dismissal if performance or attendance remains unsatisfactory.
A probation dismissal under scrutiny
This case involved a healthcare assistant who was dismissed during his six-month probationary period due to sickness absence and conduct issues. He alleged that the dismissal and earlier treatment amounted to sex and disability discrimination, a failure to make reasonable adjustments, and victimisation. The tribunal carefully examined each incident and found no unlawful conduct.
What the employer did right
The respondent had offered a modified shift pattern as a reasonable adjustment for the claimant's disability, but the claimant did not accept it. The tribunal noted that the employer had engaged with occupational health and the union, and had considered alternatives. The dismissal decision was based on the claimant's attendance record and conduct, not on his disability or sex. The grievance about an alleged assault by a colleague was investigated, and the tribunal found no evidence that the outcome was influenced by discriminatory motives.
Why the claims failed
The tribunal found that the claimant had not been treated less favourably than a comparator without his protected characteristics. The alleged incidents of discrimination were either not proven or were not because of sex or disability. The claim of failure to make reasonable adjustments failed because the employer had offered a reasonable adjustment, and the claimant had not engaged with it. The victimisation claim failed because the grievance was not the reason for any detrimental treatment; the dismissal was due to probation failure.
Key takeaways for similar claims
This case shows that employers can dismiss during probation for poor attendance or conduct, provided they follow a fair process and do not discriminate. Employees who believe they have been discriminated against must show that the treatment was because of a protected characteristic, not just that it occurred during a difficult period. Offering reasonable adjustments in good faith, even if not accepted, can protect employers from claims.
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