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Redundancy and Statutory Trial Periods

BY Erin Moncur
Employment Law & HR

A recent case from the Employment Appeal Tribunal, East London NHS Foundation Trust v O’Connor, highlighted potential errors that employers can make when offering employees who are at risk of redundancy suitable alternative employment.

Mr O’Connor worked for East London NHS Foundation as a Psychological Services and Intervention (PSI) Worker. In March 2017 he was told that, as a result of reorganisation, his PSI Worker role was to be “deleted” as of 3rd July 2017 and he was therefore at risk of redundancy. His employer identified a role of Care Coordinator which they believed to be a suitable alternative vacancy. Mr O’Connor disagreed that the new job was suitable; nevertheless, he began a trial period of the Care Coordinator role on 3rd July 2017. Mr O’Connor subsequently went off sick and pursued a grievance which was unsuccessful. The Respondent then offered him the Care Coordinator role again which he declined.

Mr O’Connor was then dismissed in December 2017. The Respondent refused to pay a redundancy payment to him on the basis that the Care Coordinator role constituted suitable alternative employment and, as the trial period ended on 9 August 2017, he had lost his right to reject the role during the statutory trial period. As he had unreasonably refused the role, he lost his right to a redundancy payment.

The Employment Appeal Tribunal agreed with the Employment Tribunal’s decision that Mr O’Connor had not actually been dismissed prior to starting the trial in the new role on 3rd July 2017. Merely notifying an employee that the post in which they are employed has been “deleted” does not inevitably amount to notice of dismissal. This meant that the Claimant was only dismissed for the first time in December 2017. As the Claimant had not been dismissed when he started the trial for the new role, the statutory trial period had not actually started yet and thus he still had the option to reasonably refuse this alternative role and remain entitled to a redundancy payment.

Following the conclusion of this preliminary matter, the case has now been referred back to the Tribunal to decide whether his ultimate dismissal was on the grounds of redundancy and whether he is entitled to a redundancy payment.

This decision serves as a reminder to employers of the importance of using clear, unambiguous language and following the prescribed process in redundancy situations. It is worth noting from the Tribunal that notifying an employee that their post Is being deleted could amount to notice of dismissal, depending on the facts and circumstances of the case. In any event, if you are making an employee redundant then you are advised to issue clear notice of dismissal in order to avoid any uncertainty when it comes to offering an alternative role.

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