Warehouse operative dismissed during probation: unfair dismissal claim struck out for lack of service

This case illustrates the difficulties employees face when dismissed during a probationary period with very short service. The claimant, a warehouse operative, was dismissed after less than two months because of concerns about his attendance. He had several absences, some of which he attributed to his mental health condition (depression and anxiety).

The jurisdictional barrier

The tribunal's first task was to consider whether the claimant could bring an unfair dismissal claim. Under UK law, most employees need two years' continuous service to qualify for ordinary unfair dismissal protection. The claimant had only two months' service, so that claim was struck out as having no reasonable prospects. This is a common outcome for short-service dismissals unless the reason is automatically unfair, such as whistleblowing or discrimination.

Disability discrimination claims

The claimant also alleged disability discrimination. The tribunal considered two types: direct discrimination (dismissal because of disability) and discrimination arising from disability (dismissal because of something connected to disability, such as absence). The direct discrimination claim was struck out because there was no evidence that the dismissal was because of the disability itself; the employer cited absence levels, not the disability. However, the claim for discrimination arising from disability was allowed to proceed, albeit with a deposit order of £100, as the tribunal thought it had little reasonable prospects but not none.

What the employer did right

Heron Foods Limited had documented the claimant's absences and conducted a performance review meeting. They dismissed him during probation for failing to meet attendance standards. The tribunal noted that the claimant's absences were mostly not disability-related, and he did not clearly raise discrimination in his grievance.

What the claimant could have done differently

The claimant could have explicitly linked his absences to his disability in return-to-work interviews and his grievance. He also might have sought legal advice earlier to understand the service requirement and the need to frame his complaint as discrimination.

Why this matters

This case is a reminder that probationary periods are risky for employees. Without two years' service, the main protection is discrimination law. Employees with disabilities should ensure they disclose their condition and request reasonable adjustments, and employers should consider whether dismissal for absence could be discriminatory, even during probation.