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Redundancies - Unfairness Over Failure to Offer a Trial Period

on Friday, 16 November 2018.

In the recent case of George V London Borough of Brent , the Employment Appeal Tribunal commented that not offering a trial period in a redundancy dismissal where there is a contractual obligation to do so is likely to be unfair.

George v London Borough of Brent

Ms George had been employed by the London Borough of Brent as a Library Manager since 2003. Following a funding cut in 2011, a redundancy situation arose and Ms George was unsuccessful in securing one of the new Library Manager positions.

Ms George was offered an alternative role as a Customer Services Officer (CSO). This role would have been at a lower grade and would have involved Ms George being managed by someone who had previously been her junior. Ms George was not offered a trial period, despite there being a contractual obligation to provide one in Brent's redundancy policy and a general statutory obligation to allow a trial period in cases where alternative work is offered (see Section 138 Employment Rights Act 1996).

Ms George did not raise any objection to her not being offered a trial period and refused the CSO position. She subsequently brought a claim for unfair dismissal, claiming that the failure to offer a trial period rendered the dismissal unfair.

The Decision

This case is unusual as this is the third time the EAT has considered an appeal of a decision made by the Employment Tribunal (ET). However, the facts and matters under appeal at each stage remained the same.

In each instance, when the case came before the ET, the ET focused on Ms George’s conduct, the fact that she had not complained about the failure to offer a trial period at the time, and that she would not have accepted the CSO role even after a trial period. In each instance they found the dismissal to be fair, despite finding that the failure to offer a trial period was in breach of Ms George’s contract.

When the case came before the EAT, on each occasion the EAT held that the ET had failed to regard the undisputed evidence of the benefit a trial period would have had, namely Ms George would have been afforded the opportunity to experience being managed by someone who was previously her junior.

The EAT stated that as the failure to offer a trial period was in breach of contract is was difficult to see ‘how something accepted to be unlawful can also be fair and reasonable’. However, the EAT also noted that it would be appropriate for the ET to take into account Ms George’s conduct in considering any possible reductions to damages.

The case has now been remitted back to the ET where a decision will be made in light of the EAT’s most recent comments.

Best Practice

While we do not have a final decision, the comments made by the EAT suggest that failure to offer a trial period where there is a contractual obligation to do so is likely to be unfair. This highlights the importance of ensuring contractual requirements are followed. Employers should also be aware of the requirement to offer a statutory trial period where the capacity and place in which the employee is employed, and the other terms and conditions of his employment, differ (wholly or in part) from the corresponding terms of the employee's previous employment.

The EAT’s comments in this case also serves as a reminder of the importance of keeping records of meetings held with employees as evidence of an employee's conduct, as this may be taken into account when calculating the level of damages payable.


For further information on employment issues, please contact Charlotte Rose in our Employment Law team on 0117 314 5219.