Nuttall v Szewczuk & Anor

Where a contract provides a shorter notice period during an employee’s probationary period, that specific term governs dismissal occurring within that period. A general four-week notice provision cannot be applied without regard to the probationary clause. An award of damages for wrongful dismissal based on the longer period is an error of law where the undisputed contractual term entitles the employee to only one week’s notice.

The claimant, Mr Szewczuk, brought Employment Tribunal claims for unpaid wages, holiday pay and payment in lieu of notice following the end of his short employment with the business NWT Wills. The Employment Judge accepted his evidence and awarded wages, holiday pay and £1,000 for four weeks’ notice.

Mr Nuttall appealed. At the sift stage, three grounds were finally disposed of, leaving only the challenge to the notice-payment award. The appeal concerned whether the Employment Judge had overlooked the contractual probationary-service term, which provided for one week’s notice during the first three months.

1. Appeal allowed in part. The Employment Judge erred in law by awarding £1,000 for four weeks’ notice. The contract had to be read as a whole. Although clause 10 provided generally for four weeks’ notice, paragraph 4 made specific provision for probationary service.
2. Paragraph 4 provided that, during the first three months of probation, either party could terminate employment on one week’s notice. The claimant had not completed three months’ employment when his employment ended on 25 October 2010. He accepted that the probationary provision applied and that he had not sought four weeks’ notice pay.
3. The applicable contractual notice period was therefore one week. The proper award for wrongful dismissal was £250, representing one week’s net pay, rather than £1,000.
4. The Tribunal did not remit the issue. Following the parties’ answers, there was no factual dispute requiring determination about the probationary period or the amount payable. The award for notice pay was substituted with £250; the remaining awards were unaffected.

• Employment Appeal Tribunal: Appeal allowed only to substitute £250 for the £1,000 award for payment in lieu of notice.
• Employment Tribunal, Bristol: Judgment sent on 18 February 2011, with reasons sent on 29 March 2011. The Tribunal awarded unpaid wages, holiday pay and £1,000 for four weeks’ notice.