George v London Borough of Brent

Employment Appeal Tribunal – November 2018

Employment tribunal failed to consider employer’s breach of contractual obligation to provide a trial period when determining fairness of redundancy dismissal.

Facts

In a case which had already been remitted to the employment tribunal twice previously, since 2003 the employee worked as one of six Library Managers responsible for two libraries. In 2011, facing funding cuts, the council decided to close half of their libraries and reduce the number of managers from six to two. The employee was unsuccessful at applying for the new Library Manager role and was subject to the council’s redundancy procedures.

There was an internal redeployment procedure to find a suitable alternative role. The employee was offered a role as a Customer Service Officer in December 2011, with the post starting early January 2012. Although the role was at a lower grade; her pay would be maintained for 12 months. At an earlier meeting, the employee was told that she would not be offered a four-week trial period in the new role and this was later confirmed via email in November 2011.

Tribunal

At the employment tribunal (ET), the issues to be considered were whether the employee was entitled to a trial period and whether the dismissal had been fair, or unfair.

The council conceded that, under their managing change policy and procedure, there was a contractual entitlement to receive a four-week trial period. Therefore, refusing the trial breached the employee’s contract of employment.

When considering whether the dismissal was fair or not, the tribunal concentrated on the employee’s conduct. They found that although she was invited to contact HR if she had any queries, the employee did not raise any concerns with HR, her trade union or anyone else. The tribunal subsequently found the dismissal was fair.

On appeal, the case was remitted back to the tribunal to consider whether the breach of contract made the dismissal fair or unfair, having regard to the employer’s reasons for not offering the trial period and the employee’s position in relation to the trial period. Again, although the tribunal found that the organisation had refused a trial period, they determined that the dismissal was not unfair because: the employee was familiar with the duties of the new role following a previous period of cover; she knew where she would be based and had worked there in the past; she knew her salary would be preserved; and she knew the manager to whom she would report to.

The employment tribunal did not accept that the trial period was important and, therefore, decided the failure to offer the period did not lead to an unfair dismissal in this case. The matter was appealed to the Employment Appeal Tribunal for a third time.

EAT

When considered by the Employment Appeal Tribunal (EAT) they highlighted that the tribunal, when making their decision, had failed to take into account evidence that the employee wished to undertake a trial period to assess how she could operate within the new role and whether she could be managed by someone whom she had previously managed.  Focusing on the employer’s evidence, and failing to take into account the value of the trial period from the employee’s perspective, meant the tribunal had failed to properly address the issue of whether the dismissal was fair following the lack of a trial period. 

Note for employers

Although this case was remitted back to the tribunal to determine the fairness of the dismissal, the EAT’s guidance on this matter appears that they are of the view that a failure to provide a contractual trial period means the redundancy dismissal is unlikely to be fair.

When discussing the matter, the EAT highlighted the benefits of providing employees with a trial period, in cases where there is no contractual obligation to do so, which include seeing whether the person is able to work in the post in practice, whether they can work within a different location, and whether they can work within a downgraded role. The case is a useful reminder that the tribunal will consider the entire redundancy process when determining whether this is a fair dismissal or not.

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