The EAT, in Przybylska v Modus Telecom Ltd, has found that an employer cannot imply a contractual term to extend a probationary period in order to carry out a performance review.
It was held that the employer was only allowed to extend the probationary period if it informed the employee of the extension during the probationary period, even if circumstances made it impractical to carry out a performance review before the end of the probationary period.
The employee was dismissed after failing her probationary period but was not informed of the decision until three weeks after the probationary period had ended. She was, therefore, entitled to three months notice rather than the one week that would have applied if she had been informed of the decision within the probationary period.
Impact on employers
Depending on the terms of the employment contract, employees are likely to have increased notice rights (and perhaps the right to receive certain contractual benefits) after the probationary period has expired. Where an employee’s performance is unsatisfactory, the employer will need to extend the probationary period or dismiss the employee before the probationary period (or any extension) has ended. Otherwise, the employer is likely to have to give a longer period of notice to terminate their employment.