Managing performance during probation: when disability is a factor

With probationary processes becoming increasingly important ahead of forthcoming changes to unfair dismissal rights, a recent £200,000 Employment Tribunal award provides a timely reminder that probation does not remove an employer’s wider legal obligations.

The case involved an employee with ADHD who experienced difficulties with concentration, organisation and time management, particularly when working in a busy shared office.

Although she performed well in other aspects of her role, payroll administration was an area she found particularly challenging. She had also received limited training in this part of her role.

Her manager extended her probation and, rather than providing additional training and structured support, removed her other responsibilities and instructed her to concentrate exclusively on payroll for several days. She was moved away from colleagues into a small, windowless converted cupboard, supposedly to help her concentrate.

The Tribunal took a very different view, concluding that the manager had effectively been “setting her up to fail.”

It found that the support provided was inadequate and identified a number of adjustments that could reasonably have been considered, including focused training, supportive management, additional time and a suitable quiet workspace. A later request to work from home twice a week should also have been accommodated.

Shortly after the employee explicitly disclosed that she had ADHD, she was dismissed during her extended probation because of concerns about payroll delays and mistakes.

The Tribunal found a clear link between her disability and the decision to dismiss her, upholding claims of disability discrimination and failure to make reasonable adjustments.

There is another important lesson for employers within this case. The employee did not initially have a formal ADHD diagnosis. This did not automatically remove her protection under the Equality Act 2010. Employers should therefore be extremely cautious about assuming that an employee is only protected once they can produce a formal diagnosis.

Where an employee explains that a health condition is affecting their ability to carry out aspects of their role, the appropriate response is to understand the difficulties they are experiencing, consider whether further information may be required and explore what reasonable adjustments could help.

This does not mean that performance concerns should be ignored. Employers remain entitled to expect reasonable standards of performance during probation. The important distinction is that, where disability may be contributing to those difficulties, appropriate support and reasonable adjustments should be considered before moving towards dismissal.

Probation should give employers a structured period to assess performance, identify concerns and provide employees with a reasonable opportunity to improve. As employment rights continue to change, having a meaningful and consistently applied probationary process will become increasingly important.

However, probation does not provide a shortcut around discrimination law. Where performance concerns may be connected to a disability, employers should consider reasonable adjustments, appropriate support and whether further information is needed before making a decision about continued employment.

In this case, the compensation exceeded £200,000. For an SME, an award of that scale could have a significant financial impact before legal costs, management time, recruitment costs and reputational damage are even considered.

The message for employers is not to avoid addressing performance during probation, quite the opposite. Address concerns early, document them properly, provide appropriate support and take advice where disability may be a factor before deciding to dismiss.

Contact us at enquiries@121hrsolutions.co.uk and we can discuss any further queries you may have on this subject.