Will a refusal to offer a trial period make a redundancy dismissal unfair?

Yes, the refusal of a contractual right to a four week trial period in an alternative role is very likely to lead to an unfair dismissal (EAT).

In George v London Borough of Brent, the EAT has made clear that a redundancy dismissal is very unlikely to be fair in all the circumstances where the employer fails to offer a trial period to which the employee is contractually entitled.

Ms George was employed as a library manager for the London Borough of Brent (the Council). The Council faced funding cuts and made the decision to reduce the number of its libraries from twelve to six and the number of library managers from six to two. Ms George went through a competitive process for the remaining roles, but was unsuccessful. Under the Council's contractual redundancy procedure, Ms George was offered a customer service officer role. This was at a lower grade and would have involved a change of work location. She would also have been line managed by someone who was formerly her junior and about whom she had previously made a complaint. There was a contractual right to a four week trial period in the alternative role. However, the Council wrongly stated that a trial period was not applicable in the circumstances. Ms George did not directly question this decision. She refused the role and was dismissed.

She brought an unfair dismissal claim to an employment tribunal. The tribunal found that the dismissal was fair. It found that the trial period would have made no difference to Ms George's decision to refuse the alternative role and commented that the claimant had only made the refusal of a trial period an issue for the purposes of the litigation.

The EAT disagreed. In fact, it disagreed twice, the same tribunal having dismissed the claim on the same basis after a remitted hearing. The EAT's judgment makes clear that the refusal of a contractual right to a trial period is very likely to make the dismissal unfair in all the circumstances. It comments that the tribunal wrongly focused on the claimant's attitude to the trial period and whether she would have been dismissed even if the trial period had been offered. While these would be relevant considerations at the remedies stage (as compensation can be reduced based on the likelihood that a claimant would have been dismissed even if the process was fair), they were not relevant when considering the fairness of the dismissal.

Statutory trial periods

Although this case concerned a contractual trial period, readers will be aware, there is a statutory right to a four week trial period in an alternative role if the employee will be employed in a different capacity or place or if other terms and conditions of employment differ from those of current contract. If the conditions of the legislation are met, this trial period will occur whether the parties have agreed to it or not and the employee will still be entitled to statutory redundancy pay if either party terminates the employment during the trial period. Case law also suggests that an employer's refusal to agree to a trial period when the statutory right applies would make a dismissal unfair.