Veitch Penny LLP - Exeter | Crediton, Devon

Case

Przybylska v Modus Telecom Ltd
Employment Appeal Tribunal (EAT) - 6 February 2007

Issues

(1) Probationary Period
(2) Notice of Termination
(3) Statutory Dispute Resolution Regulations

Facts

Miss Przybylska started working for Modus Telecom Ltd on 3 October 2005. Her contract of employment stated that there would be a three month probation period during which either party could terminate the employment with one week’s notice. Thereafter the parties were required to give three months’ notice. The clause dealing with the probationary period went on to state that the employer had the express right to extend the probationary period (and therefore by extension the period in which one week’s notice was permissible) in circumstances where the employee’s performance may not have been objectively assessed.

Her probationary period ended on 2 January 2006 (a statutory bank holiday). She returned to work on 4 January. At that point no steps had been taken by her employer to extend her probationary period. Her probationary review finally took place on 19 January 2006. On 31 January 2006 she was given notice of termination and one week’s notice. She was of the view that her probationary period had already ended so she was therefore entitled to three months’ notice. She made a claim of breach of contract.

At first instance the Tribunal ruled that there was an implied term in her contract which meant that the probationary period would be extended until her employer confirmed it had finished. The matter was then referred to the EAT.

Decision

The EAT allowed the appeal. They felt that there was no need for an implied term to be created as there was an express term in the contract allowing for the probationary period to be extended. As the employer had neither dismissed her nor exercised its right to extend the period during that initial three month period, it had lost the right to terminate her contract on one week’s notice. As a result she was entitled to three months’ notice pay.

Comments

This case highlights the need for employers to properly manage the performance of employees during the probationary period. Prompt action should be taken to address any concerns and targets to be achieved should be given. Employers should ensure that if a probationary period is to be extended then this should be done prior to the period end.

The twist in the tale is that as the employer failed to use the statutory dismissal procedure correctly, Miss Przybylska would be entitled to an uplift in her compensation of between 10%-50%. This highlights the risk often taken by the employer of deciding not to use the procedure because the employee has less than 12 months’ service required for an unfair dismissal claim. A breach of contract claim does not have any requirement for continuity of service. However, in this instance, Miss Przybylska may be subject to a corresponding deduction made to her award as she did not appeal the original dismissal.

Rachel Billen - Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.