Where an employee had been dismissed on the ground of medical incapacity while his contractual...
Trial periods and redundancy
George v London Borough of Brent
On the question of the mistaken failure to offer of a trial period in a redundancy situation, it is important to consider first of all whether this failure rendered the dismissal unfair, and then whether a trial period would have made a difference to the outcome. Neither is it an answer, when the employer has clearly admitted being at fault, to say that because the claimant did not press the point, this somehow affects the reasonableness.
Ms George worked for the London Borough of Brent (LBC) as a Library Manager. Following a funding cut, a redundancy situation arose, and she was unsuccessful in securing one of the new Library Manager positions. She was offered an alternative role as a Customer Services Officer, at a lower grade in a different location (where she had previously worked), but with her salary being ring fenced for a year - and being managed by someone who had previously been her junior. She was specifically told she would not be offered a trial period, as HR thought this only applied in the event she was being offered a job in another service. At the tribunal hearing LBC admitted they should have offered a trial period as there was a contractual obligation to provide one in its redundancy policy and a general statutory obligation to allow a four-week trial period in cases where a suitable alternative (rather than a suitable reasonable alternative) is offered (ERA 1996, s 138). She didn’t raise any objection to not being offered a trial period and refused the alternative role. She subsequently brought a claim for unfair dismissal, claiming that the failure to offer a trial period rendered the dismissal unfair.
This is an unusual case, not least because it was sent back twice to the original tribunal by the EAT, to consider a specific question and failed to do so. The EAT concluded that the tribunal clearly did not like Ms George (referring to some of their comments as ‘acidic’) but they confused two issues – the first was whether the failure to offer a trial period when there was a contractual and statutory right to one, rendered the dismissal unfair and the second was whether trial period would have made any difference to the outcome. They referred it back to a different tribunal in the hope of these questions being answered.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2018/0089_18_2109.html
This is a useful reminder on two points – what can happen if a tribunal simply do not like a party and do not believe their evidence (what we call ‘litigation risk’) and secondly the importance of offering a trial period in a role. If the trial period is offered but not taken then this not going to affect the reasonableness (unless of course there are other jobs that should have been offered and were not)