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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47362
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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We have to let an employee go after they have failed to make

Customer Question

We have to let an employee go after they have failed to make the grade during a 3 month trial period. I have a document that details everything. I need legal opinion that we are being fair and within the law
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello can you please upload the document here so I can have a look?
Customer: replied 1 year ago.
Thanks
Here is the document
Expert:  Ben Jones replied 1 year ago.
Thank you I will look at it and reply fully this afternoon thanks
Expert:  Ben Jones replied 1 year ago.
Many thanks for your patience. Your position will be relatively straightforward, with one important point to note.If she has been continuously employed at her place of work for less than 2 years then her employment rights will be somewhat limited. Most importantly, she will not be protected against unfair dismissal. This means that her employer can dismiss her 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 she was trying to assert any of her statutory rights (e.g. requesting maternity 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.Here is where you have to be careful. You mentioned that she has a medical condition and you need to establish if this condition amounts to a disability and if it does – ensure that the dismissal is not related to it.If the dismissal had nothing to do with any of the above exceptions then she would not be able to challenge it and her only protection would be if she was not paid her contractual notice period, because unless she was dismissed for gross misconduct, she would be entitled to receive her contractual notice period. If she did not have a written contract in place she would be entitled to the minimum statutory notice period of 1 week. Her employer would either have to allow her to work that notice period and pay her as normal, or they will have to pay her in lieu of notice.This is your basic legal position. I have more detailed advice for you in terms of the law on disability and how to establish if a condition amounts to disability, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Expert:  Ben Jones replied 1 year ago.
Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you for your advice, its been very helpful.Mark Wakeling
Expert:  Ben Jones replied 1 year ago.
Thank you. So as mentioned you need to establish whether she has a disability and whether such disability has anything to do with her performance and reasons for dismissal. 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. What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples:making adjustments to work premises;allocating some of the employee’s duties to others;transferring the employee to fill an existing suitable vacancy;altering the employee’s hours of work;allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;acquiring or modifying specialist equipment;providing supervision or other support. If someone who is disabled is being treated unfavourably because of their disability or their employer has failed to make reasonable adjustments it would potentially amount to disability discrimination so that is why it is best avoided and if you do wish to dismiss you must ensure there is either no disability, or that it had nothing to do with your decision to dismiss.

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