Website Cookie Policy

We use cookies to give you the best possible online experience. If you continue, we’ll assume you are happy for your web browser to receive all cookies from our website.
See our cookie policy for more information.

Practice Areas

More Information

Leeds: 0113 244 6100

Sheffield: 0114 267 5588


Send us an enquiry

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

30 November 2018

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.

If you would like to discuss any aspect of this article further, please contact Alacoque Marvin or any other member of the Employment team on 0113 244 6100.

You can also keep up to date by following Wrigleys Employment team on Twitter

The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.




Alacoque Marvin View Biography

Alacoque Marvin


23 Apr 2024

Companies House fees increasing from 1 May 2024

In this article, we look at the reasoning behind the fee increases and what they mean for charitable companies and social enterprises.

17 Apr 2024

Independent schools’ development: policies for navigating the modern fundraising landscape

Independent schools face fundraising challenges in a tough climate. Learn best practices for compliant and effective fundraising policies.

09 Apr 2024

Charities Act 2022: new provisions introduced

What do the latest provisions mean for your charity?