The Trials of the Trial Periods

22nd November 2018 Employment

Is the failure to offer a contractual trial period during a redundancy exercise unfair? - George v London Borough of Brent

The Employment Appeal Tribunal in the recent case of George v London Borough of Brent has commented that a redundancy dismissal is unlikely to be fair in a situation where an employer, in breach of contract, has failed to offer a trial period for an alternative role.

Any employee who is at risk of redundancy and is offered alternative employment on different terms should be offered the role subject to a four-week trial period under sections 138(2) and (3) of the Employment Rights Act. A dismissal could be rendered unfair if the employer fails to agree that a trial period applies. In this case the Respondent incorporated the statutory four-week trial period into their contractual Company Handbook.

The facts

The Claimant was a Library Manager employed by the London Borough of Brent. In 2011 the Respondent faced significant cuts to funding and was forced to close six of its libraries and to restructure the library management team. This meant reducing the Library Managers from six to two. The Claimant was unsuccessful in being kept as a Library Manager, so the Respondent began to search for alternative employment for her.

The Claimant was offered the role of Customer Service Officer which would be a lower grade however, the role would be ring-fenced so her rate of pay would be maintained for 12 months. However, the Claimant would not be offered a four-week trial period as the Respondent argued this trial period would only apply to a new post in a different service. The Claimant declined the job offer and was dismissed by reason of redundancy. She appealed her dismissal but made no mention of the refusal by the Respondent to offer her a trial period. Her dismissal was upheld and she brought a claim in the Employment Tribunal for unfair dismissal.

This case is procedurally unusual as it is the third time it has come to the Employment Appeal Tribunal, having already been remitted twice. At both the original and remitted hearings, the tribunal dismissed the Claimant’s claim of unfair dismissal. The core issue on appeal was how the Tribunal dealt with the issue of the trial period.

The decision

Each Tribunal focused on the Claimant’s conduct in relation to the trial period. It found that she had not complained at the time about the failure to allow her trial period and even if she had had one, she would have still rejected the alternative role. However, the EAT commented that this type of argument is more suited to Polkey arguments on remedy, and whether reductions should be made to any compensation awarded. The issue was the fairness of the dismissal and the Tribunal had confused the issue before them with the outcome of any trial period which was an entirely different issue. The Tribunal had in essence conflated the issues of liability and remedy.

The claim has now been remitted for a further hearing but limited to the narrow issue in relation to the trial period and therefore fairness of the dismissal. The EAT commented that it was difficult to envisage how the dismissal could be fair given the Respondent’s admitted failure to offer the trial period.

The lessons

George highlights the issues to be considered in an unfair dismissal claim and that those in relation to liability and remedy should not be confused. The point to be considered is whether the dismissal was fair or unfair under the Employment Rights Act. The reasons why no trial period was offered came down to a Polkey argument. Then, applying Polkey, the Tribunal should consider what chance, if any, was there that if the Respondent had acted fairly there would have still been a dismissal and then of course, questions as to compensation.

This article is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

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Charlotte Beeley is a Solicitor located in Manchesterin our Employment department

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