A counter-terror officer has succeeded in his claim for unfair dismissal last month, after his employer dismissed him for performance issues that had occurred 15 months prior.
In C Bastin v Commissioner of the Police of the Metropolis [2025], the Employment Tribunal (“ET”) held that Mr Bastin joined the police (“the Respondent”) in September 2021 and had his probationary period extended after making several mistakes. In February 2023, the probationary period concluded and following a probationary review meeting, it was said that it would be recommended to HR that Mr Bastin be dismissed.
No further performance reviews were carried out and the claimant later took on new responsibilities and attended training. In April 2024, HR invited Mr Bastin to a Recommendation for Dismissal hearing. The hearing took place in May 2024 under the Respondent’s probationary process and it was explicitly said that only performance up to the end of the extended probationary period would be assessed. Mr Bastin was then dismissed and he appealed this on the grounds that the process had been biased and unfair.
At the appeal hearing, it was effectively upheld that the claimant’s entire performance should have been assessed. However, instead of considering evidence of recent performance improvement or representations from Mr Bastin, the appeal officer confirmed the dismissal.
The ET held that the Respondent had incorrectly applied the probationary policy in deciding the dismissal. It should have recognised that the claimant had been employed for over two years and so was entitled not to be dismissed unfairly. Mr Bastin’s performance at the time of the probationary hearing in May 2024 should have been assessed. Additionally, there were no further performance reviews from March 2023, so the claimant was not given a formal opportunity to evidence performance improvements or respond to criticisms.
This was determined to be substantively unfair and whilst a fair appeal hearing can remedy a defective dismissal hearing, the appeal process itself was also held to be unfair. A separate remedy hearing to decide compensation has been listed for 28 May 2025.
This serves as a reminder to employers that they:
- Should avoid having a probationary period extending over two years, because unfair dismissal protection applies to employees after two years. This is likely to change soon due to the proposal in the Employment Rights Bill to make protection from unfair dismissal a ‘day one’ right.
- Should have a clear flag in their processes or system for when an employee has reached two years of employment. That flag should be at least two weeks prior to the two year date.
- Must follow a fair process when dismissing such an employee, including investigating performance problems, providing an opportunity and support to improve and reviewing the progress made up to the date of the decision to dismiss.
- Should also follow a fair process in carrying out appeals of dismissal hearings, including assessing all relevant information, as they may remedy procedural unfairness in the original decision to dismiss.
