University entitled to dismiss lecturer before end of probation

A university lecturer has lost her appeal against a decision that her employer was entitled to dismiss her before the end of her probationary period.

Korthals Altes began working for the University of Essex in 2017. Her contract provided for a three-year probation period, at the end of which she was entitled to apply for her position to be made permanent.

The contract contained provisions relating to probationary staff and their dismissal.

In 2019 the university gave Altes notice of dismissal on the grounds that she was unlikely to be able to achieve satisfactory progress against her targets before the end of her probation period.

She brought a claim to the Employment Tribunal asserting that termination during her probation period for capability-related reasons could only be done by following the detailed procedure of dismissal for “good cause” under a provision referred to as ordinance 41.

This provided safeguards for lecturers and limited the circumstances in which they could be dismissed.

The tribunal interpreted the contract as permitting dismissal before the end of a probation period without the application of ordinance 41 where the reason for dismissal related to capability.

The Employment Appeal Tribunal upheld that decision.

It held that the clause providing for a three-year probationary period did not state that the university could not decide before the end of that period that the appointment would not be made permanent.

The conclusion that Altes’ appeal should be dismissed was not only based on the meaning of the contractual documents, it also conformed with employment common sense.

If the employer knew that a probationary lecturer was not suitable for permanent appointment for reasons that were related to capability, it would be illogical that it should be required to keep them in employment until the end of the probationary period when they would inevitably be dismissed for a failure to pass probation.

Completion of probation was best seen as the end of the appointment process. It was therefore not surprising that it should be possible to dismiss someone during the probationary period.

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University entitled to dismiss lecturer before end of probation
Korthals Altes v University of Essex
Employment Appeal Tribunal
2 November 2021
Judge James Tayler