November 10, 2018
Since April 2020 your contracts of employment need to show whether you have a probationary period.
But remember they only occur once in employment, they don’t reappear when you issue a new contract or when someone has a promotion or new title.
Probationary Periods have to be used carefully. For example if your contract has a clause that probationary periods can be extended or that employment can be terminated in the probationary period with less notice than if the probationary period is completed, the employer must be sure to exercise his decisions in a timely fashion.
In Przybylska v Modus Telecom Limited when Miss Przybylska was recruited, her contract included a term that the employment was subject to a three-month probationary period. At the end of the probationary period, there would be an objective performance assessment which in turn would establish whether or not the employment would be confirmed. At the discretion of management, the probationary period could be extended.
The contract also stated that during the probationary period, Przybylska was entitled to one week’s notice if she was dismissed but, on successful completion of the probationary period, this notice period would increase to three months.
Taking into account the wording of Przybylska’s contract, the EAT found that her probationary period came to an end automatically on the date it ended, in other words, at the three-month point. This was despite the fact that the employee was on holiday at the time, as a result of which the employer had not had the opportunity to conduct the end of probation assessment or decide whether her appointment should be confirmed at the correct time.
The EAT pointed out that the employer could have notified Przybylska before the start of the Christmas/new year holiday period that her probationary period would be extended until such time as her manager could carry out the performance assessment. But the employer had not done this. It followed that Przybylska was entitled to three months’ notice on termination.
What do we need to learn from this EAT decision?
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