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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44944
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi there,I am hoping you can give me some advice please.

Customer Question

Hi there, I am hoping you can give me some advice please.

I have an employment contract which states my probationary period is “one year” and hence my notice period is “one month during the probationary period, thereafter 3 months”.

The contract is quite short but states that “we agree to employ you and you agree to work for us on the terms above and the Standard Terms of Employment for Staff which are attached and form part of your contract of employment”.

In the Standard Terms of Employment for Staff it says “3. Probation:

3.1 – Employment is initially probationary. During your probationary period your performance and suitability is assessed against objectives in the Appraisal Scheme and Probation Scheme (copies found on the Intranet).

3.2 - [My employers] may at its discretion extend the Probationary period as it deems necessary. When appropriate you will receive written confirmation of the successful completion of probation, and you will be on probation until this is issued.

3.3 – Employment may be terminated by [my employer] whilst you are on probation on notice as set out in your contract of employment.”

So my question is, what is my notice period if I have worked just longer than one year but have not had a recent appraisal or letter to confirm the successful completion of my probation.

I recently found another job and handed in my notice as 1 month as this was my interpretation of the contract. However my HR department has informed my line manager I am “outside of my probationary period and technically liable for 3 months notice regardless of not receiving a letter.”

I would like to know truly where I stand. Many thanks

Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Have they said what will happen if you fail to work the 3 months they believe you are bound by?
Customer: replied 2 years ago.
No, they haven't said anything about what would happen. They offered a compromise at 8 weeks. I think this is because they will struggle to find a replacement quickly. However, I have already planned to start a new job. Otherwise I would probably be happy to stay on. I just want to know where I stand, if the compromise is a good deal for me, or if actually I am not bound and the compromise is in fact a bad deal. I would like to leave as I am excited to get on with my new job.
Customer: replied 2 years ago.
Are you still there Ben?
Expert:  Ben Jones replied 2 years ago.
Hi, sorry it looks like the chat feature ended for some reason and that removed your question from my waiting list and I have just seen it.
As far as I can see from your contract, it says that your probationary period is for one year, which is a fixed term and would suggest that one the year is up, you move out of probation and into a permanent position.
However, there is also a clause which says the employer can consider extending your probationary period if it deems this necessary. It then also states that you will receive written confirmation of your successful completion of the probationary period and that you would remain on probation until such time.
One may assume that there is a general expectation on the employer to issue confirmation of the successful completion of the probationary period before it is considered completed, however this requirement is only contained in the clause dealing with a potential extension. So the employer could argue that such confirmation only needs to be issued if they have initially applied an extension to the probationary period. In the absence of an extension before the natural end of the probationary period (one year in your case), one could assume that the probation was completed successfully once that first year has passed.
So there is a chance that in the absence of any formal extension of the probation, once the initial year was up you came off probation and the terms that applied after the probationary period would now apply, meaning a longer notice period.
Saying that, the employer cannot force you to work through your full notice period of 3 months. If you wanted to leave after a month you can, but it then means the employer could try and accuse you of acting in breach of contract. They cannot take legal action against you to simply penalise you, but they can pursue you for any losses that they have incurred as a result of that breach, although this is very rarely done. So they risks of this going any further are minimal, although they can potentially mention what happened in a reference, if you are going to use them as one for your new employment.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Expert:  Ben Jones replied 2 years ago.
Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks

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