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

  • Converting commercial property into homes: what the latest planning changes mean
    Converting offices and other commercial buildings into homes can create opportunities, but planning rules are only part of the picture. We explain the latest changes and the legal issues property owners, developers and buyers should consider before p


    Read more
  • Closing the AI skills gap
    Learn how SMEs can close the AI skills gap through practical staff training, checking AI outputs, protecting sensitive data and setting clear policies.


    Read more
  • What’s in a letter: Why one small change can spell big trouble for your brand
    Can changing one letter really protect your business name? Peter Moody examines recent trade mark disputes involving FLOWERBX and Vogue, and what businesses can learn about protecting their brands.


    Read more
  • Service charge disputes in mixed-use properties: who is responsible for what?
    Service charges in mixed-use properties can lead to disagreements between landlords, residential leaseholders and commercial tenants. We explore their legal rights, a recent Court of Appeal decision and how disputes can be resolved.


    Read more
  • The do’s and don’ts of using AI in your business
    AI can help businesses improve efficiency and make informed decisions, but it also comes with risks. Explore the key do’s and don’ts of using AI responsibly, including data protection, legal considerations and the importance of human oversight.


    Read more

What they say...

  • Rahul Khanna, October 2026
    Thank you – excellent service “Thank you so much to Qaiser, Vinay and Alex, who were extremely helpful throughout a long-running and complex matter. I really appreciated their clear advice and support.”

  • Client, October 2026
    Feedback “I engaged Karen Cole at RIAA Barker Gillette to support me through a grievance process and help me navigate discussions with my employer. From the outset, Karen provided clear, pragmatic advice and took the time to explain my options,

  • Bryan E, September 2026
    Absolutely outstanding “This firm is super professional, efficient and friendly at the same time. You could not wish for a better service. I have used them for my Will and a range of other matters over many years. I’ve found all the vario

  • Jan Norris, September 2026
    Excellent Service “Charlotte Barbaroussis has prepared our wills, LPAs and a discretionary trust. She was professional, kind and patient throughout. A very fine person to have looking after us.”

  • Brian Nunan, August 2026
    “I dealt with the group for many years, and no matter which solicitor I used, the results were always the same. Excellent!”

Read more
Send this to a friend