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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46765
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi Last week I was dismissed by my employer. I had only

Resolved Question:

Hi

Last week I was dismissed by my employer. I had only accrued just under 12 months' service, so I know that there is no claim for unfair dismissal, but I think I may have a claim for wrongful dismissal.

My employment contract states that I was on a notice period of 1 month up to the end of my probationary period (which lasted 6 months), then my notice period was 3 months. At the end of my probationary period my employer told me that I had not passed it, and the probationary period would be extended by 3 months. At the end of that 3 months my employer again stated that I had not passed, but there would be another 3 month extension. At the end of the second extension my employer told me that I had not passed my probationary period, and I was dismissed.

I was advised that I would receive one month's pay from the date of dismissal. My question is whether my employer can twice extend my probationary period. There is no provision in my employment contract for an extension of probationary period, and I was never asked to consent to the extension, merely told that that it would be happening. Does this mean that the extensions are not valid, and I am therefore owed 3 months' notice?

Many thanks

Phil
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

On what basis did your employer say you had not passed your probation period please?

Customer:

Hi Ben. Thanks for getting back to me.

Customer:

It was performance. But it was a sham.

Customer:

I was recruited to do work that never materialised. I believe the real reason for my dismissal was redundancy.

Ben Jones :

OK thank you, XXXXX XXXXX it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this afternoon. There is no need to wait and you will receive an email when I have responded. Thank you

Customer:

Great. Thanks a lot.

Ben Jones :

Hi Phil, many thanks for your patience. You are correct in your assumption. Whilst a probationary period has no real standing in law, it is an internal matter that is mainly governed by your contract and the clauses in it. It is common for an employee’s employment to begin with a probationary period during which certain reduced terms would apply, such as the notice period. Such a probationary period can be extended but to do so the employer must have a clause allowing this in your contract. If no such clause exists and the probationary period is stated as a fixed term, once that term has expired and there are no other conditions that would govern it, it would be deemed that you had passed it and that the more favourable terms would start to apply. In your specific case this is exactly what happened – the employer tried to extend the probationary period not once but twice, and both times they did not have the contractual right to do so, meaning that they did so in breach of contract. This in turn would have made the dismissal a wrongful one as it was done in breach of contract because you were not paid the contractual notice period you were now due to receive.


 


You are able to pursue a tribunal claim for this within 3 months of the alleged wrongful dismissal. However, a new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.


 


If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement.


 


The conciliation procedure and the form to fill in can be found here:


 


https://ec.acas.org.uk/Submission/SingleClaimantPage


 


In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.


 


Hope this clarifies your position?

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46765
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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