⏱️ 5 minute read
An employee struggling with payroll was asked to spend several days doing almost nothing else, in a former cupboard, without the additional training and support she needed. She was later dismissed during probation.
In Ghiotto v Hawkwell House Hotel Ltd, the tribunal upheld disability discrimination claims and awarded £200,252.02. For employers, the case raises a practical question about probation – are you giving someone a fair opportunity to improve before judging whether they can do the job?
Background
The employee worked as a Talent and Culture Coordinator. She had ADHD but no formal diagnosis. The hotel accepted that she was disabled under the Equality Act.
She performed well in the employee wellbeing part of her role. Payroll was harder, with difficulties around concentration, focus and time management. After a change of manager, her probation was extended and she was told to concentrate exclusively on payroll for several days. Her workspace was a former cupboard without a window or telephone line.
The tribunal found that this approach set her up to fail. Promised support did not translate into meaningful help, and she was dismissed during probation. Claims for direct disability discrimination, discrimination arising from disability and failure to make reasonable adjustments succeeded.
Practical takeaway
A diagnosis is not the starting gun
Disability protection does not depend on producing a diagnosis report. The legal test looks at the impairment and its substantial, long-term effect on normal day-to-day activities. ADHD can meet that test, although each person’s circumstances need to be considered.
If someone tells you that concentration, noise or time management is affecting their work, ask what is happening and what might help. The duty to make reasonable adjustments can arise where you know, or could reasonably be expected to know, about the disability and the resulting disadvantage. Waiting for paperwork can leave a known problem unaddressed.
Medical or occupational health advice may help you understand the position. In the meantime, consider workable support rather than treating the absence of a diagnosis as permission to carry on unchanged.
Check what your performance process is testing
Employers can set standards and address underperformance. But concentrating an employee’s role on the task they find most difficult, without addressing the reasons for that difficulty, gives you a poor basis for deciding whether they can succeed.
Before setting the next review date, check what training has actually been delivered, whether instructions and priorities are clear, and whether the proposed working arrangements help. A quiet workspace may be useful; its suitability still needs discussing with the person who will use it.
Consider adjustments to the way work is organised, the support available and the time allowed. Record what you agree, who will put it in place and when you will review it. A promised daily catch-up needs space in someone’s diary.
Probation still needs a fair assessment
Discrimination protection applies from day one. A probation clause does not remove it, and extending probation does not resolve an unmet adjustment need.
Before deciding to dismiss, look at the employee’s performance after appropriate support has been put in place and given a fair opportunity to work. Check whether remaining concerns are linked to disability and take advice on the decision, including any alternatives. Keep an accurate record of the reasoning at the time.
How can we help?
We can help you review a difficult probation decision, work through reasonable adjustments and give managers practical support with performance conversations. If you’d like a second pair of eyes before deciding what happens next, get in touch.
This update is accurate on the date it was published but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
