Will A Refusal To Offer A Trial Period Make A Redundancy Dismissal Unfair?

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...