Redundancy – alternative employment and trial periodsLexLeyton
A dismissal for redundancy is likely to be unfair unless the employer has considered whether there is suitable alternative employment within the business (or group). If suitable alternative employment is offered, it might be subject to a statutory 4 week trial period if the role, place of work or other terms and conditions are different from the previous job. A statutory trial period starts at the end of the employee’s employment under their old contract or within 4 weeks of it ending. What happens if a role is deleted in a reorganisation and an employee works in another suitable role for more than four weeks – do they lose the right to a redundancy payment?
In East London NHS Trust v O’Connor, the employee was a PSI Worker who had been employed for nearly 20 years. He was told his post was going to be deleted in July 2017 and he was at risk of redundancy. He was also told that formal notice of dismissal for redundancy would follow at some point. He started a trial period as a Care Coordinator in July 2017. He did not agree with the employer that it was suitable alternative employment. He raised a grievance which was rejected. He went off sick and continued to refuse the Care Coordinator role. He was eventually dismissed with notice in December 2017. The employer refused to pay him a redundancy payment. They said he had undertaken a statutory trial period for the Care Coordinator role which had expired in August 2017. The role had been suitable alternative employment which he had refused and so he was not entitled to a redundancy payment.
The employment appeal tribunal agreed that the employee had not been given formal notice of termination in July 2017 despite his role being deleted. Deletion of a role does not necessarily amount to notice of dismissal. As a result, a statutory trial period could not have begun (because it can only start at the end of the original contract) in the Care Coordinator role. The EAT sent the case back to the employment tribunal to decide whether the employee’s dismissal in December 2017 was for redundancy and whether a redundancy payment was due.
This case highlights the complexity of the rules about suitable alternative employment and trial periods. Statutory trial periods for suitable alternative roles can only start at the end of original contract. That means that the employee must have been given notice and the notice period must have expired. Employers who fail to get their processes right might find themselves having to defend unfair dismissal claims on more grounds than just redundancy.