The tribunal decision was published on 26 March.
Colin Bastin joined the National Counter Terrorism Security office in September 2021. However, his probation period was extended over the course of 12 months due to concerns over his performance.
Bastin made mistakes during his probation period, the tribunal heard, including forgetting to take his headphones when attending a "sensitive and confidential call" online at his local library.
In February 2023, Bastin attended a meeting with managers where dismissal was recommended as a result of his poor performance. However, there was no follow-up to this meeting, the tribunal heard, so Bastin continued working in the role.
In May 2024, Bastin was invited to another meeting at which managers confirmed that Bastin would be dismissed due to poor performance.
Bastin gathered evidence to show that his performance had improved since the meeting in February 2023. However he was told that his managers would only consider his performance up to the previous meeting.
Judge Davidson ruled that the dismissal was unfair due to being based on "out-of-date" information about Bastin’s performance.
Bastin’s compensation is due to be decided at a hearing on a later date.
It is important to communicate the terms of a probation period correctly and effectively to employees, explained Emma Christian, HR consultant team lead at employment law and HR consultancy firm AfterAthena, .
She told HR magazine: “It is essential to explicitly communicate the duration, expectations and assessment criteria of probationary periods to employees.
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“Clear communication of probation terms, such as duration, expectations and performance criteria are essential from the outset. HR leaders should provide written clarity during the offer stage, reinforce expectations during onboarding, and ensure regular feedback mechanisms are in place.
“Any extensions should be formally communicated, with clear reasons and objectives. Most importantly, employee progress and development should continue to be recognised, even after the probation ends.”
Isabella Mason, an associate at law firm Oury Clark, added that employees should have a clear understanding of how their role and performance is being assessed.
Speaking to HR magazine, she said: “Employees should also be provided with tools and training throughout their probationary period, in order to succeed.
“Regular check-ins should be scheduled with the employee throughout the probationary period to discuss performance, address concerns and offer feedback. This should very much be a two-way conversation. HR leaders should ensure employees' questions and concerns are listened to, and that the employee has access to the resources required to successfully complete probation.”
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In the tribunal decision, Judge Davidson stated: “Bastin's performance, which was the reason for dismissal, had been assessed over a fixed period that had ended over a year before the decision was taken. It was unfair not to allow him to bring evidence of his recent improvement.”
It is important for employers to give employees the opportunity to improve their performance, said Paul Griffin, head of employment EMEA at law firm Norton Rose Fulbright.
Griffin told HR magazine: “If the formal period for determining probation has passed, it might be considered fair to take into consideration performance up to the point of the assessment, rather than simply to the end of the contractual probation period. Regular meetings should be held with the employee to assess performance, and records should be kept of any issues which need addressing. How performance is measured will depend on the role, but managers should be encouraged to consider which performance metrics are best suited to the role.”
Employers should also make sure to consider all circumstances before making decisions about performance, added Mason.
She said: “HR leaders should explore the context and circumstances (i.e. not just instances of negative performance) before making assumptions. Knee-jerk reactions should be avoided, and a fair process should be followed, even during probation.
“It goes without saying that regular feedback should be provided throughout the extended probationary period. Employees must be given a fair opportunity to address performance concerns, and improvements should be duly acknowledged in any employment decisions.”
