Should an employer have provided a trial period to a member of staff before proceeding with redundancy dismissal?

In the case of George v London Borough of Brent an Employment Appeal Tribunal (EAT) were asked to decide if an employer had acted fairly by refusing to provide a trial period to an employee, who had been placed in an alternative role, before proceeding with a redundancy dismissal.

The employee had worked as a library manager for 8 years when in 2011, as a result of funding cuts, the employer was forced to close half of their libraries and reduce the number of library managers from six to two. The existing managers were invited to apply for the two new library manager roles, however George was unsuccessful in her efforts and therefore subject to her employer’s redundancy procedure.

As part of this procedure, efforts were made to find George a suitable alternative role within the organisation. She was subsequently offered a role as a customer service officer and, whilst the salary for this role was lower than her previous one, it was agreed that her pay would be maintained for a further 12 months.

Before commencing, George had requested a four-week trial period in order to ‘get to grips’ with her new role and adapt to the fact that this was based in a different location to her previous position. However, the employer refused this request which meant George subsequently declined the job offer and was made redundant. George then proceeded to bring a claim for unfair dismissal to an employment tribunal (ET).

The ET was asked to consider whether George was entitled to a trial period in her new role and in light of this whether the employer’s decision to dismiss her had been fair. For their part the employer conceded that there was a contractual entitlement for staff to undergo a four-week trial period once they were placed in a new role. Therefore, their refusal of this right breached the employee’s contract of employment.

However, when assessing the fairness of the dismissal, the ET concentrated on the employee’s conduct. They found that the decision to dismiss George was ultimately fair, as she refused to raise any concerns with the HR department about the requirements of the new role, despite being advised to do so if she had any issues.

On appeal, the case was remitted back to the ET to consider whether the breach of contract made the dismissal fair or unfair. However, despite the employer’s admission that they had wrongfully refused to offer a trial period, the ET ruled this was not important in George’s case and the decision to dismiss was fair. In coming to this decision they placed significant emphasis on the fact that George was familiar the duties and location of her new role having occasionally worked in this position in the past.

George appealed this decision to the EAT who stressed the ET had failed to take into account evidence that George expressed her wish to undertake a trial period to assess how she could operate within the new role and if she could be managed by someone whom she had previously managed herself. As a result, the EAT decided the ET failed to properly assess the importance of the trial period from George’s perspective and were therefore unable to address whether the dismissal was fair. The case was then remitted to the ET to correctly determine the fairness of the dismissal.
Whilst we await a definitive ruling on this matter, guidance from the EAT suggests that a failure to adhere to the contractual trial period would make the redundancy dismissal unfair. This is another reminder of the importance of fair process and equal treatment when conducting a redundancy procedure.

Suggested Resources