Mrs E Etuk v Princess Alexandra Hospital NHS Trust: 6032044/2025
JUDGMENT
[1]The Claimant’s complaint of unfair dismissal brought under Part X Employment Rights Act 1996 is dismissed on withdrawal.[2]The Claimant’s complaint of wrongful dismissal is dismissed. The Respondent did not breach the Claimant’s contract of employment in the timing or manner of dismissal.REASONS
[1]The Claimant, Mrs Etuk, was employed by the Respondent between 2 December 2024 and 14 May 2025 when her contract was terminated during her probationary period. She claims that in doing so the Respondent acted in breach of contract. She accepts that the contract provided for termination by either party on giving one week’s notice and that she was given one week’s notice. However, she contends that the Respondent’s Probationary Period Policy and Procedure (‘the Policy’) formed part of her contract, and that asserted breaches of this were also breaches of contract.[2]The Respondent disputes that the Policy formed part of the Claimant’s contract of employment, but in the event that the Tribunal finds otherwise, it contends that the Policy was complied with and there was no breach of[3]I heard evidence from the Claimant. She disputed that some of the meetings during the probationary period took place, specifically:• 18 December 2024 – the Claimant accepts that the meeting was arranged by email, but says Sandra Murphy, Ward Manager, was not present on the ward that day. Within the hearing bundle there is an email exchange between Ms Murphy and the Matron, Michelle Lynch, on 18 December, in which Ms Murphy asks Ms Lymch to book ‘Alex Health’ training for the Claimant. In addition, the documents compiled by management for the hearing of the Claimant’s appeal against her dismissal reference mandatory training requirements being discussed at the meeting. The consistency between the Respondent’s assertion and the contemporaneous email leads me to find, more likely than not, that a meeting took place on 18 December 2024.• 3 January 2024 – the Claimant says there was no meeting, but she spoke to Ms Murphy who wrote the names of two nurses who would be her mentors on her Competencies Booklet. In her appeal request letter, the Claimant says she ‘caught up’ with Ms Murphy on this date. The Management Response document prepared for the appeal hearing references needs identified at the meeting and actions taken to address those concerns. These include booking further training. Whilst the meeting may have been short and informal, I am satisfied that a meeting of some sort took place.• 10 March 2024 – the Claimant says this did not take place. However, there is an email from Ms Murphy sent on the afternoon of 10 March arranging 1-1 Alex Health training. Around that time there were also tickets raised with IT, for example around the Claimant being able to request scans via the Trust’s system (CRIS access). This was an agreed outcome of the meeting according to the Management Response pack for the appeal. As such, I am satisfied more likely than not that a meeting took place.[4]On 24 February 2026, after granting the Claimant’s application to amend, the issues to be determined at this hearing were agreed as follows: - Was the Respondent’s probationary policy contractual (did it form part of the Claimant’s contract of employment)? - If so, did the Respondent breach it in the timing and manner of the Claimant’s dismissal? - If not, was the Respondent contractually entitled to dismiss the Claimant with one week’s notice?[5]Dealing with the first question, on behalf of the Claimant it was submitted: In applying the principle in the case of Alexander, the Probationary Period Procedure is apt for incorporation and so incorporated by reference. Clause 2 of the contract expressly identifies the "Probationary Period Procedure" as the framework governing the probationary relationship and provides that “the Line Manager will supply one with details of the Probationary Procedure, which is also available on the Trust’s Public Folders”. C submits that this is not a generic reference to policies, rather it is a contractual direction to a specific procedure that defines how probation is to be managed. The wording "will provide" demonstrates that the Procedure is intended to be supplied to, and relied upon by, the employee as part of the contractual framework regulating probation. The Procedure is further apt for incorporation because it prescribes concrete and certain steps governing the parties' rights and obligations during probation including structured review meetings, documented assessments, and prescribed forms. Properly construed, they form part of the contract of employment regulating C's probationary period of employment.[6]On behalf of the Respondent it was submitted: The Respondent’s primary position is that the probationary policy was not contractual. In particular: Section 2 of the contract of employment states that the Claimant’s contract of employment is subject to the nationally agreed terms and conditions as set out in the AfC Handbook. Part 3 of the AfC Handbook (Terms and conditions of service) does not contain any provisions governing probationary periods or the type of probationary procedure that the Respondent is required to adhere to.1 Although clause 2 of the contract of employment refers to the probationary policy, this is not apt for incorporation. In particular: The probationary policy (in particular, clause 6) is not important to the “overall bargain” struck (see Keeley v Fosroc, cited at §168(i) of Hussain (cited above)). This can be contrasted with the provisions of Part 3 of the AfC Handbook, which arguably forms an important part of the bargain struck, such as section 16 (governing redundancy pay arrangements for NHS workers in England). The probationary policy is vague or discursive. For example, at clause 5.1.1 it states that the “Trust is committed in supporting all its employees through a structured probationary period”, and clause 5.3 states that line managers are responsible for producing a training programme, monitoring progress and encouraging members of staff to fully meet the requirements of the role. Clause6.1 goes on to explain how there should be probationary review meetings and that the “overall approach will be one of “no surprises”- employees must always be clear on how their conduct and attendance is viewed and must not be confronted with a list of inadequacies at the end of the probationary period”. Clauses6.2 and6.3 goes on to state that there is a review at the three-month stage and a final probationary review at which point the line manager will decide whether to confirm appointment, extend the probationary period or terminate employment and that advice must be sought from HR. The Respondent avers that the probationary policy is nothing more than an advisory document that sets out an expression of best practices. The fact that clause 6.1 does not prescribe a level of detail means that it is not apt for incorporation. If clause 6.1 were to be contractually binding, the court would need to be involved in micro-managing how the Respondent manages an employee’s probation, something which should be avoided (see §168(ii) of Hussain, cited above). If the Tribunal were to conclude that clauses 6.1 to 6.3 of the probationary policy were apt for incorporation and that the Respondent could only terminate the Claimant’s contract of employment if it adhered to the probationary policy, this would render clause11 of the contract otiose. Clause 11 of the contract states that“[i]n the event that the Trust terminates your employment you are statutorily entitled to the following minimum periods of notice:• One week’s notice during the first two years’ of employment”. There is no suggestion that the Respondent’s ability to dismiss the Claimant with notice under clause 11 was fettered by the probationary policy(or any other policy/procedure). By contrast,clause11 fetters the Respondent’s ability to summarily dismiss an employee, as it states that the “Trust may terminate your contract of employment without notice on the grounds of gross misconduct”.[7]The Probationary Policy is referenced in clause 2 of the contract of employment, which has the heading ‘Probationary Period’. The clause states that all new employees are subject to a probationary period of 6 months, which may be extended. It ends: “Your Line Manger will provide you with detail of the Probationary Period Procedure which is also available on the Trust’s Public Folders”.[8]The Probationary Period Policy (‘the Policy’) states: 1.1 – The introduction of a Probationary Period to the Contract of Employment has been agreed in partnership with Staff Side Representatives[9]I will begin by saying that it is not disputed that the Claimant had a probationary period, and that this was contractual. The question is whether the policy formed part of that contract.[10]Clause 2.5 of the Policy states: This policy is designed to be read in conjunction with… the employee’s contract of employment[11]This indicates that the Policy supplements the contract and provides detail with regard to what the probationary period will entail. I do not find that this incorporates the policy into the contract.[12]Clause 4.0 of the Policy is “Definitions”. It defines the Probationary Period and continues: It allows both the employer and employee to terminate the employment contract where set criteria are met [my emphasis][13]Since the basis upon which a contract can be terminated is a fundamental aspect of the contract, and since the criteria for termination of the contract are set out in the Policy, I find that the relevant part of the Policy (clause 6.6 – Termination of appointment following unsuccessful probationary period) is intended to provide clarity on the circumstances in which the contract may be terminated and hence apt for incorporation into the contract. In reaching this finding I have had regard to the factors in Hussain v Surrey and Sussex Healthcare NHS Trust 2011 EWHC 1670, QBD, which are likely to indicate contractual effect. The first of these is the importance of the provision to the contractual working relationship. Further, in accordance with Alexander and ors v Standard Telephones and Cables Ltd (No. 2) [1991] IRLR 286, I am satisfied that clause 6.6 is specific and is apt to form part of the contract.[14]I do not find that the entire Policy is incorporated. This is because the remainder is inapt for incorporation applying Alexander. Having regard to Hussain, the remainder of the policy could be described as discursive, and is in my view too vague for the parties to be clear as to their rights and duties. Further, I find that the remainder of the Policy was indented to provide guidance, because objectively that is what it does, for example:6.1 Implementation of the probationary period – the Line manager must produce a programme detailing training and other requirements… This lacks specificity, probably because the programme will vary depending on the employee’s role6.2 – The line manager will continue to encourage the member of staff to fully meet the requirements of the role… I find ‘encourage’ is subjective and what amounts to encouragement is likely to be variable depending on the progress made by the employee.[15]I accept the Respondent’s submission that if the entire Policy were to be contractual, the tribunal would become involved in micro-managing an employee’s probation period. There is no indication that this was the intention of the parties at the time the contract was entered into.[16]However, clause 6.6 is specific. It provides that a decision to terminate employment following an unsuccessful probationary period can only be taken where: i. Probationary reviews have been conducted and records kept ii. HR has been consulted iii. The final probationary review meeting has taken place[17]I do not accept the submission that incorporation of this clause into the contract of employment renders clause 11 of the contract otiose, because that simply sets out the contractual notice periods that apply during the probationary period and in other circumstances. The Respondent could, taking the contract alone, terminate an employee’s probation period for no reason, and would not be in breach of contract providing a week’s notice had been given. However, I find that this Respondent, which had a Policy which stipulated criteria to be met before an employee’s employment could be terminated during the probation period, intended to be bound by those criteria. Any employee would also understand, having read the Policy, that their employment would not be terminated during their probation period unless the criteria in 6.6 applied.[18]As to whether the Respondent acted breach of contract, in so far as the Claimant’s claim for breach of contract relies on breaches of clauses6.1 and6.2 (monthly probationary reviews [although there is no reference to frequency in the Policy] and the prescribed form not being used to record the reviews), in view of my finding as to the non-contractual nature of those clauses I do not find that either of these things amounted to a breach of[19]As to whether clause 6.6 was complied with or whether the Respondent failed to do so and was therefore in breach of contract, I find the Management Response to Appeal and associated emails to be a more reliable record of meetings that took place than human memory. I find that the meetings that the Claimant disputes did take place, for the reasons outlined above. I do not find the Claimant’s evidence that Respondent ‘fabricated’ meetings to be plausible, in view of the contemporaneous documents, the recorded outcomes and the lack of any motivation for fabrication. Additionally, the Claimant accepts that a meeting took place on 11 February 2025, this being the mid-point review meeting. Finally, there was a review meeting with mentors on 18 March. No meetings took place in April, the Claimant being on sick leave for two weeks. From the meetings that took place, it is apparent that the Respondent had wide ranging concerns about the Claimant’s performance in her role.[20]I am satisfied that the first criteria for steps taken prior to termination is met: probationary reviews were conducted. Records of these are generally in emails, in addition to notes of the meetings on 11 February and 18 March.[21]The Claimant does not dispute that there was HR involvement. The second criteria is met.[22]The final probationary review meeting was held on 8 May, one month before the probation period was due to end, in line with the Policy. The outcome was termination of the contract of employment, as recorded in the letter to her of the same date. The third criteria has been met.[23]As such I find that the Respondent followed the process that it was contractually bound to undertake as outlined at clause 6.6 of the Policy. It decided that the outcome of the probationary review meeting was termination of the Claimant’s contract. It gave one week’s notice in accordance with the contract of employment. There was no breach of