Both in person For the v Respondent — 2023

Mr D Rapp and Mr M Payne each brought breach of contract claims after the Respondent paid them one month’s notice on termination of employment on 23 May 2023. They said their contracts entitled them to three months’ notice. The tribunal heard evidence from the Claimants and reviewed the written contracts and correspondence, including the amended probation clause and later messages about probation being “boxed off”.

The tribunal found that the signed contracts, read as a whole, included clauses 5.2 to 5.4 and the entire agreement clause. Although clause 5.2 was amended to provide for a fixed three-month probation period, clauses 5.3 and 5.4 were left in place. Clause 5.4 provided that, at the end of probation, the employee would be informed in writing if probation had been completed successfully, and if no written confirmation was received, probation would continue.

Applying Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, the tribunal held that there was no ambiguity or obvious mistake in the contractual wording and that pre-contractual negotiations did not change the construction of the signed contracts. It rejected the argument that the contracts should be read as giving an unconditional right to three months’ notice once the initial three-month probationary period ended. The 6 February 2023 WhatsApp exchange was treated as an acknowledgment of a request for written confirmation, not as the written confirmation itself.

The tribunal found that no written confirmation was ever given that the Claimants had successfully completed probation. As a result, their probation continued under the contractual terms, and when they were dismissed they were only entitled to one month’s notice. Both breach of contract complaints therefore failed.