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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor
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I have a query about whether I can claim months notice.

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Hi I have a query about whether I can claim for 3 months notice. Where do I stand
I’m claiming that they owe be 3 months notice rather that 1 on the following grounds:
1. Probationary Period finished on Friday 13rd May. In order to extend it they should have notified me in writing (as per handbook). The Contract does make any provisions about extensions nor is there any statement overriding the “notify in writing” clause statement from the Staff handbook.
2. Contact says “success completion” though there is no indication of how this is implied. I suggest that simply being still employed after the 13th May would imply successful completion, i.e. completing Probation by default.
I have been researching on the Internet for similar cases and found that “MISS M PRZYBYLSKA v Modus” Ref UKEAT/0566/06, is on par with mine, she was successful. Though the question is whether my verbal extension of the probationary period is legal as the Staff handbook says that a probationary period extension is confirmed in writing.
Below are the relevant statements for the Contract of Employment and Staff handbook and a timeline of events
1. Joined Monday 22nd February 2016. Probationary Period to end Friday 13th May (12 Weeks).
2. Leave/Compassionate Leave taken due to father’s illness and death, Tuesday 3rd May until Friday 6th May (4 days)
3. On Monday 9th May was verbally advised that probationary period was to be extended by 1 week, due to leave taken/given for the previous week.
4. On Friday 21st May received email advising to attend 1-2-1 meeting on Tuesday 24th May.
5. On Monday 23th May asked if probationary period completed successfully. Advised yes and it would be discussed at the 1-2-1.
6. On Tuesday 24th May at 1-2-1 advised that employment was to be ceased with immediate effect as I was no longer required after the new Director had restructure the department.
I was issued with a Contract of Employment and a Staff handbook. Both documents make reference to the Probationary Periods.
From Contract of Employment:
States the following:
Your employment will be subject to the successful completion of a 12 weeks probationary period, satisfactory references and completion of medical screening if deemed necessary. Throughout your probationary period, we will support you with appropriate training, but we reserve the right to terminate your employment for unsatisfactory performance or conduct at any time during your probationary period without recourse to our disciplinary procedure.
There is also a Variations Clause included, stating the following:
1. Variations to your Contract of Employment will be notified to you in writing. If you continue to report to work for at least 1 month following notification without resources to the Grievance Procedure, it will be deemed that you have accepted the change.
2. Any term or condition expressed in this Statement shall take precedence over any conflicting provisions set out in Company Handbook in force as at the date of this Statement.
There is also a Termination of Employment section which states:
The employee and the Company are required to give 1 months’ notice in writing during the probationary period. The employee and the Company are required to give 3 months’ notice in writing after successful completion of the probationary period.
From Staff Handbook
Unless otherwise stated in your terms and conditions, all employees will undergo a 9 month probationary period. During this period, your progress will be reviewed by your Team Leader/Area Manager on a frequent basis. Any potential issues identified during this period will be highlighted and activity managed with additional training and support being given where appropriate, in order that you can quickly achieve the required standards. At all times we will work with you to help you through this probationary period. If during this time, things do not work out as expected the Company may at its discretion either:
• Extend your probationary period by notifying you of this (in writing) in order to give you more time to improve your performance.
• Invite you to a meeting to discuss your conduct, performance, or attendance during your probationary period. The meeting could lead to action being taken up to and including dismissal.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Let me review this and I will get back to you today

Many thanks for your patience. The case law you have mentioned is indeed the relevant one in these circumstances and I do think you have a case to claim your extended notice period here. My comments on the situation are as follows:

· First of all the staff handbook says that the extension must be done in writing. You have to check whether the handbook officially forms part of your contract of employment because if it does not then it will not have contractually binding effect and its contents would just be policies, which the employer should follow, it is not a must in a contractual sense. Therefore, it would not necessarily be a contractual requirement for the extension to have been done in writing.

· Assuming that the extension was valid even if not in writing, the probation would have continued until 20 May. Your employer did not take any steps to extend it any further from date onwards and following the case law it would have been assumed that if no communication was made about an extension before the probation was officially over, that it would have been assumed to be passed

· In addition, you specifically asked if the probation was passed successfully, which the employer confirmed it had on 23 May

So overall I would say there is a reasonable chance that you are due the extended notice and you may wish to consider pursuing the employer further for it.

This is your basic legal position. I have more detailed advice for you in terms of the official steps you need to follow in order to take the matter further, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you

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Customer: replied 1 year ago.
Hi Ben.Thanks the reply. How to I check to see if the handbook forms a legal part of my contract? Another question. If the PB was verbally extended until the 20th May and I was invited to a 1-2-1 meeting on the 20th though no mention of PB was made (I have a copy of the meeting request) does this mean that the meeting on the 24th was outside the PB therefore I could infer that I have corrected the PB

Hi there, to check if the handbook is contractual you need to check the contract to see if there is anything in in that says the handbook forms part of it, or check the handbook itself to see if there is any mention of it having contractually binding effect.

Your assumption on the PB query is also correct – you may have been sent the invite on 20 May but by the time the meeting was held and the decision communicated, you were already outside of the extended PB so it should be a further argument that it had already been passed by then.

In terms of challenging this and claiming for what you are owed, the employer should be contacted in writing, advised that this is being treated as unlawful deduction of wages and ask them to pay back the money within 7 days. Advise them that if they fail to pay the money that is owed, legal proceedings could follow.

If the employer does not return the money as requested, the following options are available:

1. Employment Tribunal - the time limit to claim is only 3 months from the date the deductions were made. To make the claim, form ET1 needs to be completed and submitted - you can find it here:

2. County Court – this is an alternative way to claim and the advantage is that the time limit is a much longer 6 years and is usually used if you are out of time to claim in the Tribunal. The claim can be made online by going to:

Hopefully by warning the employer you are aware of your rights and are not going to hesitate taking further action they will be prompted to reconsider their position and work towards resolving this.