The probationary period of employment offers both employers and employees a unique opportunity. Use it wisely, and document it well; as we see from Mrs. Shaukia Mir v. IQVIA Ltd, dismissal following a probationary period does not always go unchallenged.
The effective and robust use of probationary periods is essential and I will write about how and why in more detail at another time, but for now I’ll just set out a few key reasons to make the most of the opportunities afforded by using a good probationary process:
- Performance Evaluation: Employers have a unique opportunity to evaluate an employee’s performance and suitability for the role, including assessing skills, work ethic, and cultural fit within the organisation.
- Behavioural Assessment: It provides an opportunity to observe the employee’s behaviour, attitude, and interaction with customers, clients, colleagues and supervisors, ensuring they align with the company’s values and culture.
- Simplified Dismissal Process: It isn’t the main reason for having a robust probationary process, but it is certainly a contributing factor to why it is so important that it is generally easier to terminate employment at this point if the employee is not meeting expectations; the probationary period is designed to test the employment relationship (for both parties).
- Reduced Legal Risk: Employees who have been employed for less than two years do not have the same level of protection against unfair dismissal claims. This makes it easier and less risky to dismiss an underperforming employee within this timeframe.
This latter point is particularly relevant in the case linked above. While it is true that in most cases an employee may not present a claim for unfair dismissal within the first two years of employment, this is not the case if they can demonstrate the reason for the dismissal was related to a protected characteristic.
Mrs. Mir (the claimant) was dismissed as part of IQVIA’s probationary review process. During her probationary period, the company evaluated her performance and determined that it did not meet the required standards. The claimant alleged her dismissal by the company was an act of disability discrimination; she suffered from golfer’s elbow and shoulder pain, impairments she claimed lasted from January to March 2020, when she was dismissed. The claimant argued these constituted a disability and that the company had failed to make reasonable adjustments for her condition, leading to her unfair dismissal. However, the Employment Tribunal agreed with the employer and found that the claimant had not established that her impairment was likely to last 12 months, a key criterion under the Equality Act 2010 for defining a disability.
On appeal, it was contended that the Employment Tribunal Judge, and previously her employer, should, but had not, considered whether her impairment was likely to recur or if the adverse effects would persist but for her treatment. However, the Employment Appeal Tribunal (EAT) dismissed her appeal, citing insufficient evidence to support these claims, which leads me to the reason I have chosen to comment on this case.
The claimant had been dismissed in March 2020 and, for the Employment Tribunal (ET) submitted a physiotherapist report dated May 2022, which did set out that she could be said to be disabled for the purposes of the Equality Act 2010 as her ailments were significant and had lasted more than twelve months. However, you will note the date of the report is over two years after the dismissal and we learn that the twelve months used to evidence disability included a significant time after the dismissal. You may well ask how an employer can be expected to know what will happen in the future, much less be aware of the contents of a report not yet written. Well, you would be right to ask and the ET ruled the claimant could not rely upon this report to prove her disability:
The tribunal also needs to bear in mind that it is concerned with whether the claimant was disabled at the date of the acts complained of and not relevant what occurred after neither must it take that into account.
Mrs S Mir v IQVIA Ltd and Ms S Tranter: 3307564/2020
In its judgement, the ET, later supported on appeal by the EAT, reassuringly (and one would hope somewhat obviously) set out that assessing the likelihood of an impairment lasting 12 months can only be based on the circumstances at the time of the alleged discrimination, not with the benefit of hindsight. While an employer must take seriously any claim of disability, it is the responsibility of the employee making the claim to provide such evidence as is necessary to support it:
“It is plain that the burden of proving disability lies on a claimant who alleges he or she is disabled and that the form of proof, if necessary, is likely to involve medical evidence although that is not essential in every case.”
Mrs. Shaukia Mir v. IQVIA Ltd
There is some reassurance for employers to take away from this case. They can, and more importantly, are only expected to, make decisions as to whether an employee is disabled on the evidence to which they reasonably have access at the time and not on what later transpires. In this case, the claimant’s ailments appear to have continued, or reappeared, in some form for twelve months after her dismissal and one may well argue she is therefore disabled for the purposes of the Equality Act. However, her employee could not have known what would happen in the future and was presented with no evidence of the likelihood of such an outcome.
Key Takeaways for Managers and Employees
- Evidence is Critical: Ensure that any claims of disability are supported by robust medical evidence. The lack of such evidence was a significant factor in the dismissal of this appeal.
- Procedural Fairness: Follow fair procedures meticulously and ensure your probationary process is robust, fair and transparent.
- Effective Use of Probationary Periods: Probationary periods are vital for assessing employee suitability. However, ensure that any performance issues are well-documented and that dismissals are justified with clear evidence to defend against potential claims of unfair treatment.
- Understanding Recurrence and Treatment Effects: Familiarise yourself with the legal definitions of disability, especially regarding the likelihood of recurrence and the impact of medical treatment on impairments.
If you would like advice, support or guidance on the proper use of probationary periods or the disability discrimination issues raised above, please get in touch.