The Employment Appeal Tribunal (EAT) has considered whether an individual had been dismissed prior to starting a trial period in alternative employment, as required under the relevant statutory provisions.

East London NHS Foundation Trust v O’Connor UKEAT/0113/19 

Facts

The employee in this case was informed that as a result of a reorganisation his role would be “deleted” with effect from 3 July 2017, meaning that he was at risk of redundancy. On that date he began a trial of a different role, which he contested as not being “suitable alternative employment”. The employer proposed to extend the trial period by a further four weeks. The employee went off sick and brought a grievance, which was not upheld. His employment was eventually terminated on 22 December 2017, when he was paid in lieu of his 12 weeks’ notice entitlement but he was not paid any redundancy payment. The employee brought a claim in the employment tribunal seeking a declaration that he was entitled to a statutory redundancy payment.

As a preliminary issue, the tribunal held that the claimant had not been dismissed prior to starting the trial period on 3 July 2017, meaning that it did not comply with the requirements of a statutory trial period. The employer brought an appeal against that decision, claiming that the notification of the decision that the employee’s role would be deleted was sufficient to amount to notice of dismissal.

EAT decision

The EAT has dismissed the appeal. Taking into account the facts and circumstances of the case, notification that his role was being deleted did not amount to a communication of the employee’s dismissal, meaning that the trial of the new role starting on 3 July 2017 was not the start of a statutory trial period. The case was remitted to the tribunal to determine whether the employee’s dismissal in December 2017 was a redundancy dismissal, and whether a redundancy payment was due.

Consequences

This case illustrates the complexities of the legislation relating to statutory trial periods in redundancy situations. The finding that there was no statutory trial period applicable to the employee means that his entitlement to a redundancy payment has not automatically been extinguished by his employment continuing to December 2017.

For the statutory trial period to apply, an individual must have been dismissed or been given notice of dismissal by reason of redundancy. Employers must make any offer of alternative employment before the individual’s employment under the previous contract comes to an end. The trial period must start no later than four weeks after the end of the previous contract, and last for a period of four weeks. It can only be extended in limited circumstances where retraining is required; both parties must agree to an extension beyond the four week period in writing before the new contract starts.

This article is from the November 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.