Employment Matters - December 2018
DAC Beachcroft's Employment Matters December 2018 focuses on some of the most interesting cases and events occurring within the Employment Law sector.
Published 6 December 2018
Ms George was employed as a Library Manager by the London Borough of Brent. When Brent suffered funding cuts, it closed six of its libraries, creating a redundancy situation. Ms George, with five other Library Managers, was invited to compete for one of two new Library Manager posts. Her application was unsuccessful, and she was offered a job as a Customer Service Officer. This role was at a lower grade, with salary ring fenced for 12 months. She would have had to work in a different location and work for someone who had been junior to her. Wrongly believing that it did not have to offer her a trial period in this role, Brent told Ms George that she would not be offered a four week trial period. Ms George turned down the alternative role, and her redundancy was confirmed. Brent later conceded that the refusal of a trial period was a breach of contract and Brent’s statutory duties.
Ms George claimed that she had been unfairly dismissed. An employment tribunal dismissed her claim. The tribunal had not believed Ms George’s evidence that the trial period would have been important to her, and found that as “the results of a trial period were a foregone conclusion…she was not disadvantaged by [Brent’s] refusal to offer it.” The tribunal held that the dismissal had not been unfair.
Ms George appealed to the EAT.
The EAT said that the tribunal had been wrong to focus on Ms George’s conduct, that the tribunal’s conclusion that she had not been disadvantaged by the refusal to offer a trial period was “inexplicable”, and that there are many potential advantages of a trial period, including whether the employee, having been downgraded or moved to a different location, could make a go of it. It held that the tribunal had failed to make any findings about Ms George’s evidence that she wanted a trial period to see if she could cope in the new role. The EAT also questioned how the unlawful failure to offer a trial period could be, as the tribunal had said, fair and reasonable.
The case was remitted to a fresh tribunal.
This case related to a contractual trial period. However, failing to offer a trial period even where there is no contractual right is likely to mean that the dismissal is unfair. Employers offering "at risk" employees a new role as an alternative to redundancy should offer the statutory (or contractual, where applicable) trial period if the terms of the new role are different from the employee’s existing terms. This should be done even if the employer thinks that the employee’s departure at the end of the trial period may be a foregone conclusion or that the employee does not need a trial period to decide on the suitability of the role.