Notice pay; sickness; s.87(4) ERA 1996. An employee dismissed on long-term sick leave with 13 weeks' contractual notice, unpaid, claimed pay for the notice period under s.88. The EAT held that because his contractual notice exceeded the 12-week statutory minimum by at least a week, s.87(4) disapplied the employer's liability under s.88 for the whole notice period, contractual and statutory alike. Section 91(5) did not assist: it only requires ss.87 to 90 to be taken into account where the employer fails to give the s.86 notice, and giving more than the statutory notice is not such a failure. The tribunal had also erred in finding the contract varied to 12 weeks.
Breach of contract; probationary period; implied terms. The contract provided a three-month probationary period with one week's notice, three months' notice after successful completion, and an express right to extend probation where an objective assessment had not been possible. The employer did not extend it. After it expired, over the claimant's holiday, the employer held a review and dismissed her on one week's notice. The tribunal implied a term allowing the review to be completed within a reasonable time after expiry. The EAT (6 February 2007) allowed her appeal: the term was not necessary, since the express right to extend met the employer's need and it had not been used; it would have given the employer a further right inconsistent with the express one; and a reasonable bystander in the employee's shoes would have taken probation to be complete once the period ended unextended. Assessment of her three months' notice pay, including any statutory adjustment and credit for earnings, was remitted.