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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48547
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was on 6 months probation when I was taken ill months.

Resolved Question:

I was on 6 months probation when I was taken ill for 3 months. By the time I went sick,I worked for 4 months. In an unofficial talk, I was told that I have to complete my probation period which was supposed to be another 2 months from my return date(25th of Jan)To that effect ,I was sent a letter stating that my probation was to complete on 25th April stating that they did not have time to do their assessment because of my sickness. I disputed the date with HR, no reply. On 31st of March, 3 days after my probation that was deemed to have been completed, I was officially asked to attend a probation meeting. My employment was terminated on the basis that I was unprofessional,a Liar, did not attend to deadline, did not attend meetings and I was working weekend only even though I did so before. Could you please advise me if I have a case for unfair dismissal and claim for loss of Income. Many thanks
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Were you entitled to a longer notice period on completion of probation and if so were you given that on dismissal?
Customer: replied 2 years ago.

For Ben Jones :I was given one week paid notice and holidays due

Expert:  Ben Jones replied 2 years ago.
Ok but did the contract say that on successful completion of probation you would be entitled to a longer notice period?
Customer: replied 2 years ago.

For Ben jones: One week on Probation and One month there after

Expert:  Ben Jones replied 2 years ago.
Ok thanks I will get back to you with my response shorty, no need to respond in the meantime thanks
Expert:  Ben Jones replied 2 years ago.
If you have been continuously employed at your place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because you were trying to assert any of your statutory rights (e.g. requesting maternity/paternity leave, etc.). In the event that the reason for dismissal fell within these categories, then the dismissal will either be automatically unfair, or there will be a potential discrimination claim.
As you were off sick the only potential protection would be due to disability but you would need to show that you were actually disabled in law.
In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’.
The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.
I will break this definition down:
• Physical or mental impairment – this can include nearly any medical condition;
• Substantial effect – the effect must be more than minor or trivial;
• Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;
• Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)
If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees. So if the dismissal was due to your condition then it could amount to disability discrimination and be an automatically unfair dismissal but you must show that you were disabled and that the dismissal was linked to your condition.
If the dismissal had nothing to do with any of the above exceptions then you would not be able to challenge it and your only protection would be if you were not paid your contractual notice period, because unless you were dismissed for gross misconduct, you would be entitled to receive your contractual notice period.
This is where your main rights may come in. You were entitled to a week’s notice before completion of probation and a month’s notice thereafter. You were only give a week’s notice but you could try and argue that you should have been entitled to a month’s notice. The relevant case in these circumstances is that of Przybylska v Modus Telecom Limited.
There, the employee Miss Przybylska, was employed on a 3 month probationary period, which could have been extended by the employer. During the probation her employment could be terminated with a week’s notice, with a longer period applying once the probation was completed. She was on holiday when her probationary period expired and the employer had not yet taken steps to extend her probationary period. A couple of weeks later she was dismissed with just a week’s notice, as required during her probationary period.
She complained of breach of contract and the decision was that she should have been paid 3 months notice, which would have applied after the completion of her probationary period. The Tribunal said that the assessment on whether to confirm the completion of her probation or extend it should have taken place during the probationary period and if it wanted to the employer should have extended the probationary period before it was due to expire. Therefore, if the employer has not taken steps to extend the probation before it expires, it would be assumed that it has been successfully completed and the terms that would apply following successful completion would be the valid ones.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.

For Ben Jones: Thank you for the clarification. I forgot to add that I have been doing the job for 30 years and nobody has ever labelled me as Unprofessional, a liar or failing in my duties. Can I take a civil action against the person who has label me as such for Defamation of Character as these are accusations that has been used to framed for my dismissal. Thank you

Expert:  Ben Jones replied 2 years ago.
I would not recommend that, it is a very complex and expensive claim to make, you are easily looking at over £10k in fees just to make the claim and cannot guarantee that you will get anything back. If the employer was to use these terms in a reference then it could amount to negligence so you could take action for that, especially if you lose out on job opportunities as a result but try to stay away from defamation.
If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
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