In the case of George v London Borough of Brent, the Employment Appeal Tribunal (EAT) has commented that a redundancy dismissal is likely to be unfair where an employer fails to comply with a contractual obligation to offer a trial period for an alternative role.

The Claimant had been employed by the Respondent as a Library Manager. She was informed that her role was being made redundant and was offered a job as a Customer Service Officer (CSO) which was at a lower grade, however her rate of pay would be maintained for a period of 12 months.

The Claimant had a meeting with the Library Services Manager and was told that she would not be offered a four week trial period in the CSO post despite the Respondent’s policies stating that she was entitled to such a trial period. The Claimant was invited by email to direct any questions to HR regarding the decision to not offer her a trial period. However, the Claimant never raised the issue of a trial period either with HR or her trade union. The Claimant declined the CSO job offer and was subsequently made redundant. The Claimant then issued a claim of unfair dismissal before the Employment Tribunal (ET).

The Respondent accepted that it was in breach of contract as the Claimant had a contractual entitlement to a four week trial period which it did not honour. The ET therefore had to consider whether the dismissal had been fair or unfair.

In the Claimant’s evidence she contended that the trial period was extremely important, arguing that she would have retained her employment had she been offered a trial period. However, the Respondent disagreed as the Claimant did not question her entitlement to a trial period with anyone.

The ET held that the Claimant’s dismissal was not unfair because she was familiar with the CSO position having trained new CSO’s and having covered for a CSO who was on long-term absence. In addition, the Claimant had previously worked in the location where the CSO position was based, she knew her salary would be preserved for a year and she knew the managers to whom she would report.

The Claimant appealed the ET’s decision to the EAT.

The EAT disagreed with the ET’s ruling, stating that the ET had been wrong to hold the Claimant at fault for the Respondent’s failure to offer a trial period.

The EAT stated that the ET failed to deal with the fact that the Claimant wanted a trial period in order to see how she would handle being managed by someone who had previously worked under her and with whom she had had disagreements with in the past.

The EAT commented that they struggled to see how the dismissal could be fair given the Respondent’s failure to offer a contractual trial period. The EAT has remitted the case to a fresh employment tribunal to make a finding on the fairness of the dismissal. Should the fresh Tribunal find the dismissal to be unfair, it will then have to look at what the outcome would have been had the trial period, which ought to have been offered, had taken place. Such argument is relevant to the value of the Claimant’s claim rather than liability.  

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