Ms Sarah Arnold v GBA Services Ltd — 2021

Ms Sarah Arnold resigned on 18 June 2020 with three months' notice, due to expire on 18 September 2020. The respondent dismissed her on 2 July 2020 and said her employment would end on 31 July 2020 because she had been unsuccessful in her probationary period. The claim was brought as a breach of contract claim for the loss of the remainder of the notice period.

Employment Judge Newstead Taylor found that the claimant was not subject to a contractual three-month probationary period, or any probationary period at all. The employment contract did not set out probationary terms, even though the offer letter referred to pension auto-enrolment after three months' probation. The tribunal also relied on the fact that the claimant was not told the probationary period had been varied, and she was not invited to or given the results of the Month 1 and Month 2 reviews while employed.

In the alternative, if a probationary period had existed, the tribunal found that the claimant had successfully completed it. The tribunal referred to the later enhanced annual leave contract, the furlough arrangement made without any probationary condition, and the auto-enrolment into the Nest pension on 19 April 2020, which the offer letter linked to completion of probation. The tribunal rejected the respondent's alternative case that the dismissal was for capability, finding that poor performance had not been discussed with the claimant before dismissal and that she had not received the prior warning required by the contract before dismissal for unsatisfactory performance.

The tribunal therefore held that the respondent breached the contract by dismissing the claimant on 2 July 2020 for failing to complete a probationary period she was not contractually subject to, or alternatively by dismissing for capability without following the incorporated contractual warning process. Damages were assessed as nil because the tribunal found the contract could have been lawfully brought to an end by 31 July 2020, the claimant had been paid in full to that date, and no further contractual loss was recoverable.