NOTES OF CASES

Published date01 November 1973
DOIhttp://doi.org/10.1111/j.1468-2230.1973.tb01394.x
Date01 November 1973
NOTES
OF
CASES
UNFAIR DISMISSALS
AND
EMPLOYEES
ON
PROBATION
R.
v.
Secretary
of
State
for
Social Services, ex
p.
Khan
is one of
those cases which, straightforward enough in itself, gives rise to
issues of more general importance. The applicant was a doctor
who was appointed medical assistant in geriatrics to a group of
hospitals.
His
appointment was for a two year period
"
renewable,
subject to confirmation, for an indefinite period." Before the two
year period expired, he was informed that his appointment would
not be confirmed. In paragraph
190
of the terms and conditions of
his employment, there was a procedure whereby
a
doctor could
put his case before a professional committee if he considered that
his appointment was
"
being unfairly terminated
))
and the Secre-
tary of State would examine the question in the light
of
the
committee's advice. The problem before the Court of Appeal was
whether Dr. Khan could make use of this procedure. This
depended on a point of construction-was his appointment
''
being
unfairly terminated
))
within the meaning of those words in
paragraph
190.
Lord Denning M.R. thought that the arguments were nicely
balanced. Termination could refer either to termination by notice
or to termination by effluxion of time. There were, however,
several features of the conditions of service which indicated that
the procedure was only available in the former situation.2 In
particular, the words
"
being
unfairly
terminated
)'
pointed to
some positive action on the part of the hospital board, such as
giving the employee notice, as distinct from the contract coming
to an end automatically. Buckley L.J. also took this line. In his
view the word
"
terminated
')
was being used transitively and
postulated some act by the employer which was to bring the
appointment to an end, and was not applicable to a case where
the appointment came to an end merely by the effluxion of time.
And
so,
because
Dr.
Khan's appointment automatically came to
an end after two years unless it was confirmed, he could not use
the appeal procedure to raise the issue whether the decision
not
to
confirm his appointment was
or
was not unfair.
But what is the position of persons on probation if they bring a
claim for unfair dismissal under the Industrial Relations Act
1971
?
1
119731
2
All
E.R.
104.
2
Para.
190
was one
of
a group of terms under the main heading
"
Notice of
Termination
"
and the
cross
heading
"
Representations against dismissal."
Moreover certain phrases in para.
190,
like
"
t,he
Board's
decision
to
termi-
nate
"
and
"
before the expiry of the notice given,'' contemplated that the
employment was to be terminated by notice.
3
Lord
Denning'e italics.
647
648
THE
MODERN
LAW
REVIEW
VOL.
36
Lord Denning M.R. argued4 that such a claim would not be
successful.
"
When
. .
.
a probationary period of two years comes
to an end (and is not confirmed and renewed) the person appointed
just has to leave; he cannot complain; he has not survived his
probationary period." The present writer maintains that this need
not always be
so.
Under section
22
of the Industrial Relations Act
1971
every employee has the right not to be unfairly dismissed,
and an employee working under a contract for
a
fixed term is to
be taken to be dismissed for the purposes of the Act if that term
expires without being renewed under the same contract
(s.
23 (2)
(b)).
The contract must, however, be for a period of not less than
104
weeks
(s.
28)
and must have been entered into after the
commencement of the Act
(s.
80
(a)).5
Consequently, it would
seem that prima facie an employee on a probationary contract of
two years
or
more, can bring a claim. And, indeed, since it has
recently been held that to dismiss
a
servant without giving him a
hearing is automatically an unfair dismissal, the chances of success
for a man in
Dr.
Khan's position look fairly good."
By section
30
(b),
however, an employee working under a
contract for a fixed term of two years
or
more, loses this statutory
protection if he
"
has agreed in writing
"
before the expiry of the
term to exclude any claim in respect of his rights under section
22.7
It
is thought that this provision must be narrowly construed since,
generally, parties are not competent to contract out of the protec-
tion of an Act.8 Accordingly, such a disclaimer should either be
made an express term of the contract which the employee consents
to in writing
or
else be made the subject of a separate written agree-
ment, before it can have any legal effect.
It
cannot simply be implied
whenever an employee enters into a contract of employment sub-
ject to a probationary period of two years
or
more. Thus if an
employer wishes to avoid possible liability under the Industrial
Relations Act in the case of a servant on probation, he must
either take steps under section
30
(b)
or
else ensure that the
servant's contract is for a fixed term of less than two years.O
A
final point arises from the case. Under section
31,
on the
application of the parties to a procedure agreement,lo the Indus-
trial Court, once satisfied
(inter
a2ia)
that the remedies for unfair
4
At
p.
107.
5
Dr. Khan would have failed
on
this point. His appointment began in July,
1
om
A"
I
".
6
See
Earl
v.
Slater
d
Wheeler
(Aidyne)
Ltd.
[1973] 1
All
E.R.
145
noted by
7
The
dismissal must consist only
of
the expiry
of
that term without its being
8
An
analogy can be made with the Rent Restriction Acts.
9
A
possible solution is a series
of
one-year contracts over
a
period
of
two years
or more.
A
procedure agreement means
so
much
of
a col-
lective agreement that deals with,
inter
alia,
machinery
for
negotiating
terms
and conditions
of
employment, dismissal procedures, discipline procedures
and grievance procedures.
Paul
Jackson
(1973) 36
M.L.R.
433.
renewed.
10
See
s.
166
(5)
of
the Act.

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