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Right to be accompanied to probation review


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I started in a new job on the 6th of January. On Friday afternoon last week, I had a chat with my company's MD, which raised concerns in her mind about my performance. As a result, she scheduled an early probationary review, scheduled for Monday morning this week. She informed me in the invitation letter which she sent on Friday afternoon that:

 

-  This was the only time that week that she was available.

- I could be accompanied by a colleague or trade union representative. 

- If I was unable to attend, a decision could be made in my absence. 

 

On Monday morning, I had the meeting, and was dismissed for performance issues. Because I had worked there for less than 13 weeks, I will receive a week's notice. Had the meeting been held on or after Wednesday, I would have received a month's notice. 

 

The MD has since sent me a letter explaining the reasons for my dismissal, in which she states that I chose not to be accompanied by anyone. However, she had blocked my access to the company's email and Teams systems over the weekend, meaning that I could not have contacted a colleague in advance of the meeting to ask them to accompany me. Also, although I am not a member of a union, it is highly unlikely that I could have arranged for a representative to have attended at 9:30 am on Easter Monday when I only found out about the meeting on the afternoon of Good Friday. 

 

Do I have any basis for legal action, on the grounds that I was effectively denied the right to be accompanied to the meeting that is provided by the Employment Relations Act 1999? Also, would I have grounds for legal action on the basis that I was not given much time to prepare for the meeting, and the fact that I being denied access to the company's systems over the weekend made it harder for me to prepare for the meeting? 

 

Thank you.

 

Jeff

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4 minutes ago, Ethel Street said:

As you need to have been employed for 2 years before you can bring a claim to Employment Tribunal for Unfair Dismissal unfortunately it is irrelevant whether those parts of the procedure were fair.

 

Hi Ethel

 

Thanks for your reply.

 

I'm not sure that's correct. I believe that, even though I have no comeback if I get sacked within the first 2 years of employment (with a few exceptions, such as discrimination), I do have a right for correct procedure to be followed. There is actually a precedent - from https://www.questcover.com/news/failure-to-comply-with-the-right-of-accompaniment/:

'
In Collins v ILC Manchester Ltd t/a International Learning College 2013, the employee was two months into his probationary period and was called into a meeting. The employee wanted a companion to accompany him, but the employer refused and, at the end of the meeting, dismissed him. The employee complained to the employment tribunal that the company had refused him permission to be accompanied to a disciplinary hearing. The tribunal supported the employee's complaint and awarded one weeks worth of pay compensation. The tribunal refused to accept the employers argument that the meeting was not a disciplinary meeting (and so triggered the right to be accompanied) because the decision was already made before the meeting. The tribunal had also commented that it was not relevant to the statutory definition of a disciplinary hearing that the employee was in a probationary period.'

 

Jeff

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Ok let us say that the correct procedures were not followed and you took this to ET on this basis.

 

What outcome would you expect from the ET ?

 

Your employment is not going to be reinstated.  You might be offered a weeks pay possibly.

 

Best way forward is to write to the company recorded delivery appealing the dismissal  on the basis that they did not follow the correct process.   Suggest  that they need to restart the disciplinary process allowing it to  conducted in the correct way, allowing you to be accompanied to any meeting arranged.  Failure to take this action, will lead to you asking the ET to review the actions taken by the company.

 

Before you do this, worth checking with ACAS

 

https://www.acas.org.uk/contact

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Hi Uncle Bulgaria

 

If the meeting had been on Wednesday or later. to allow me time to prepare for the meeting and to arrange for someone to accompany me, I would have been given a month's notice rather than a week's notice. I was therefore thinking of seeking as compensation the difference between a week's notice and a month's notice.

 

Jeff

 

Edited by JeffW
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Did you tell them you wanted to be accompanied, or did you proceed as if you were happy to be unaccompanied? If you made no comment, the company is in the clear. If you did protest, proceed as post 4.

Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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3 hours ago, JeffW said:

 

Hi Ethel

 

Thanks for your reply.

 

I'm not sure that's correct. I believe that, even though I have no comeback if I get sacked within the first 2 years of employment (with a few exceptions, such as discrimination), I do have a right for correct procedure to be followed.

 

You misunderstand me. I wasn't commenting on whether the prpocedure was correct. But that it's irrelevant whether the procedure was correct because even if you can show it was not correct procedure they can dismiss you anyway and you cannot take them to ET for Unfair Dismissal (nothing in your posts suggests Discrimination is a relevant issue). So where would proving there was an incorrect procedure take you to if they want to dismiss you anyway?

Edited by Ethel Street
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My two cents as someone who's ran these meetings and disciplinary and such and to play devils advocate.

 

- Personally I think it's been poorly handled from the company from your feedback, but some companies will be run like that. Ideally you should be given a plan of probation reviews ie. 4-8-12 weeks and held around those times where possible. 

 

You may push these up if someone isn't up to scratch however. 

 

Some places won't even give you a formal notice for a probation meeting and just have one on shift when you are at work with you.

 

Anyway, I suppose arguably you could have contacted the employer to contact someone at work for you; if you wished to attend. 

 

Example, we've had staff suspended who are unable to contact other members of staff/prohibited as part of their suspension, whom asked if we could ask a staff member to attend their future meeting.

 

I agree in one sense it's not enough time, but there's not really much to prepare usually for probation meetings. They aren't disciplinary meetings, I've read through the case above but still disagree in that regard, it's not a part of usually the formal disciplinary process

 

Basically it seems the decision was made to let you go unfortunately prior to the meeting, which happens and isn't wrong in itself. 

 

Obviously they processed the meeting for the Monday to prevent having to pay you a months notice, which again is fine and nothing wrong there.

 

A lot of rules and such are just guidance you'll see online, there's no guarantee you'd win for unfair dismissal at all either. I'd personally take it on the chin and move on. It happens. 

 

Hopefully something else comes along soon.

 

Edited by gami
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