The Claimant was dismissed during his probationary period without notice but with a payment in lieu of notice. The Probation Policy provided for two review meetings that would generally take place over 6 months. The terms of the contract of employment and the Probation Policy included a 5 week notice provision during the probationary period. The contract of employment included a garden leave clause but did not include a provision for payment in lieu of notice. After a meeting described as a first probationary meeting, the Claimant was dismissed with immediate effect with a payment of 5 week’s pay. Both Claimant and Respondent agreed that the employment should not continue as the relationship was untenable. The Claimant claimed that he had been wrongfully dismissed and said he was entitled to compensation covering the 6 month probationary period. The ET dismissed his claim and said that he had not been wrongfully dismissed. The Claimant appealed.

The EAT allowed the appeal. The ET should have held that the Claimant was wrongfully dismissed but there was no entitlement to compensation because the Claimant would have been dismissed with five weeks notice had the Respondent adopted the least burdensome manner of lawfully terminating the Claimant’s contract in circumstances in which neither party wanted the contract to continue. The claimant had received a payment that represented what he would have been paid for that five-week period.