From 1 January 2027, employees will be able to claim unfair dismissal after six months’ service, rather than two years. Many employers are therefore taking a closer look at their probationary periods. A tribunal decision reported earlier this month is a timely reminder that, even now, before these changes have come in, dismissing an employee during probation does not remove the risk of a claim. Discrimination claims can be brought from the first day of employment, whatever the employee’s length of service.
What happened
Mr Lechmere-Smith joined Kensington Park School, a private school in West London, as director of studies in September 2023. His contract said he would work from 8am to 6pm. Before accepting the job, he told the headmaster that those hours would be difficult because of his childcare responsibilities. The headmaster reassured him, including by e-mail, that the hours were not rigid and that his circumstances could be accommodated as long as the work was done.
During his first term he worked long hours, both at school and at home, and was given some flexibility over when he arrived and left. Several female colleagues, including senior staff, were also allowed to arrive late or leave early.
The headmaster was then suspended and an acting head took over. In January 2024 the acting head wrote to Mr Lechmere-Smith to restate his contractual hours and told him that he would be expected to be in school from 8am to 6pm and to attend all evening events. He tried to challenge the letter but received no reply. Less than two weeks later, he was dismissed with immediate effect, with pay in lieu of notice, on the basis that he had not passed his probation.
The tribunal’s decision
The school argued that Mr Lechmere-Smith had never made a formal flexible working request, that he was bound by the hours in his contract, and that there were concerns about his performance.
The tribunal did not accept that performance was the real reason for the dismissal. No concerns had been raised with him before he was dismissed, and he had stepped in to cover gaps when other staff were unavailable. On the day of his probation meeting in December, he had been given a £100 voucher on top of the £50 voucher given to all staff, which the judge saw as genuine appreciation of his work.
On the contract, the tribunal found that the conversations before he started were not legally binding on their own. However, the way both sides behaved afterwards showed that they had been working on the basis of agreed flexibility.
The key point was that Mr Lechmere-Smith was the only member of staff whose contractual hours were enforced in writing. Female colleagues, including one with no childcare responsibilities at all, continued to work flexibly without any consequences. The tribunal concluded that a woman in his position would have been allowed to carry on as before, and his claim of direct sex discrimination succeeded.
Lessons for employers
- Probation is not a shield. There is no minimum length of service for discrimination claims, and there is no cap on the compensation a tribunal can award for them.
- Keep a record of performance concerns. If you intend to end someone’s employment during probation because of their performance, the concerns should have been raised with them and recorded at the time. Tribunals are sceptical of concerns that only appear once a claim has been made, particularly where, as here, the employee was praised or rewarded shortly beforehand.
- Be consistent. Informal arrangements, such as leaving early or flexible start times, need to be applied fairly across the workforce. Treating one employee less favourably than colleagues of a different sex in the same situation is an obvious discrimination risk.
- Take care when management changes. A new manager is entitled to tighten up on a predecessor’s informal arrangements, but should do so consistently, explain the reasons, and respond to any concerns raised rather than ignoring them.
- Put flexibility in writing. Even where early promises are not binding, the way people work over time can show that terms have been varied. Any flexible arrangement should be confirmed in writing, including whether it is temporary or will be reviewed.
- Do not rely on the lack of a formal request. Employees can make a statutory flexible working request from their first day. An informal conversation about hours should be treated seriously, and the school’s argument that no formal request had been made did not help it.
Final thoughts
As the change to the unfair dismissal qualifying period approaches, it is sensible to review how probation is managed, so that reviews actually take place, concerns are raised and recorded promptly, and decisions are based on evidence. This case shows that where an employer cannot explain a probation dismissal convincingly, a tribunal will look for another reason, and may well find one.
If you would like help reviewing your probation procedures or flexible working arrangements, please get in touch with one of our HR Advisors by emailing hr@perspectivehr.co.uk or by phoning 01392 247436.