Skip to main content

Insight article

December 20, 2019

Trial periods in a redundancy scenario

The Employment Tribunal has ruled that employers must give clear notice of the termination of the redundant role when any alternative employment is offered, and a trial period commences during a redundancy consultation.

It is advisable, in any redundancy consultation, for an employer to make a reasonable search for suitable alternative employment, which employees at risk of redundancy could perform to avoid being made redundant.

Where alternative employment is offered, both the employer and the employee benefit from a trial period to assess the suitability of that role. Under the Employment Rights Act, the trial period starts when the employee’s employment under their existing contract ends and lasts for a period of four weeks.

In the recent case of East London NHS Foundation Trust v Mr David O’Connor, Mr O’Connor worked for the NHS. In 2017 he was made aware that he was at risk of redundancy. He was told that due to a reorganisation, his current role would be “deleted” on 3 July 2017 and he began a trial for a different role on that date.

The parties subsequently disagreed about whether this role was suitable and Mr O’Connor pursued a grievance which was unsuccessful. The NHS again offered Mr O’Connor the alternative role which he declined, and he was therefore dismissed in December 2017.

In dismissing Mr O’Connor, the NHS refused to make a redundancy payment to him, as it argued that the trial period had ended on 9 August 2017.

One of the first issues the Employment Tribunal had to consider was whether Mr O’Connor had been dismissed on 3 July 2017, prior to starting the trial of his new role. They concluded that he had not and, therefore, 3 July was not the start date of his trial period.

In a scenario such as this, legislation provides that an employee shall be taken to be dismissed by his employer if, amongst other things, the employer gives notice to the employee to terminate his existing contract of employment.

Whilst the NHS had informed Mr O’Connor that he was at risk of redundancy and made him aware that his role was being “deleted”, it did not, in law, constitute a notice of dismissal.

An employer must communicate to an employee that their employment is terminating and whilst Mr O’Connor knew that his then role was being “deleted”, the Employment Tribunal held that it was ambiguous as to whether Mr O’Connor would consequently know that his employment contract was being terminated.

Employers need to have a sound working knowledge of the redundancy process and the recommended practices surrounding it, so as not to fall foul of procedure. Employers that do not carry out a full and fair redundancy process could face claims for unfair dismissal.

For advice and information on any redundancy process, Karen Cole today.

Note: This is not legal advice; it provides information of general interest about current legal issues.

Stay in touch

Subscribe to our newsletter

Stay in touch

By completing your details and submitting this form you confirm you are happy for us to send you marketing communications and that you agree to our Website Privacy Policy and Legal Notice and to us using Mailchimp to process your data.


Sending

News/Insight

  • Strategic lifetime gifting
    How to minimise your IHT liability during your lifetime.


    Read more
  • Navigating directors’ duties
    Legal responsibilities and risks for UK company directors


    Read more
  • Preparing a business-lasting power of attorney
    In this article, private client solicitor Herman Cheung of West End law firm RIAA Barker Gillette (UK) considers the advantages, needs and practical examples of creating a bu


    Read more
  • Can you make a WhatsApp will?
    Key legal requirements and future outlook.


    Read more
  • Supporting neurodiverse people in family law matters
    Understanding neurodiversity in the legal context.


    Read more

What they say...

  • Michael, May 2025
    “Very pleased with the services provided by Charlotte Barbaroussis. Particularly found her quick and effective to reply to any queries.”

  • Malcolm & Sheila Blackmore, May 2025
    “My wife and I engaged RIAA Barker Gillette to prepare our wills and LPOA’s. James McMullan and Charlotte Barbaroussis were the epitome of professionalism – responding quickly, talking us through the legalese, clearly answering any

  • Ian, April 2025
    “Martin and his team at Barker Gillette acted for us in our purchase and sale of property. The chain was lengthy and elements of the work became complex. Martin was tenacious and resolved to answer our queries as they arose. He handled all aspe

  • Henry, April 2025
    “We have purchased flats before with 2 different solicitors who were unable to help us this time. Martin came highly recommended and are we glad. He was very professional in every way: knowledgeable, approachable, he has a friendly manner, very

  • Megan Purcell-Jones, April 2025
    “Charlotte was extremely diligent and thorough. She talked us through the process of making our wills and listened to and understood our needs and the complexities involved. Extremely patient and very clear.”

Read more
Send this to a friend