The Employment Appeal Tribunal (EAT) has held in George v London Borough of Brent that, given that the Council had conceded that the failure to offer a trial period was unlawful, it was hard to understand how the tribunal could then conclude that the claimant’s dismissal was “fair and reasonable”.
Ms George was one of six library managers who, between them, were responsible for managing the Council’s 12 libraries. As a result of funding cuts in 2011, the Council decided to close six of the libraries and reduce the number of managers from six to two. Ms George was unsuccessful in obtaining one of the new posts and was therefore made redundant.
As part of the Council’s redeployment procedure, she was offered a job as a customer service officer (CSO), albeit at a lower grade and in a different location. However, although she was contractually entitled to a trial period under the Council’s managing change policy, it refused to offer it to her on the ground that the new job was within the same service as her old job. As a result, she refused to accept the offer of the CSO post and was dismissed for redundancy.
She then brought a claim for unfair dismissal on the basis that the failure to offer a trial period meant that the dismissal was automatically unfair.
Although the tribunal found that Ms George had a contractual right to a trial period, it found the dismissal was still fair on the following grounds:
- She was familiar with the more limited duties of the CSO post, having trained new CSOs
- She knew where she would be based and had worked there previously
- She knew that her salary as library manager would be preserved for a year
- She knew the managers to whom she would report, all of whom were professionals who could “work together”
- She knew that she would receive a redundancy payment even if she refused the CSO job.
- She did not cite the failure to offer her a trial period as one of the reasons in her letter in which she turned down the offer of the CSO post.
The EAT, however, disagreed. Given that the Council had conceded that the failure to offer the trial period was unlawful, it was hard to understand how the tribunal could then conclude that the dismissal was “fair and reasonable”.
It then provided guidance for the tribunal and remitted the issue for it to reconsider its decision. However, on two occasions the tribunal came to the same decision. That is, that the dismissal was fair.
On this, the third time Ms George appealed to the EAT, the Appeal Tribunal remitted the case to a newly constituted tribunal on the basis that the tribunal had failed to have regard to the benefit of a trial period for Ms George.
In particular the EAT said that the tribunal should consider the fact that she wanted to try out the job because she was going to be managed by a new manager, who had previously worked under her, and about whom she had complained in the past. It was, therefore important both for the claimant and the new manager “to try out the relationship in this new role”.
This is an unusual judgment in which a matter was appealed to the EAT on two separate occasions to consider the same point after the first instance tribunal failed to follow the initial guidance given. The case related to the significance of trial periods in redundancy dismissals. Whilst the judgment largely stands on its own facts it does provide that in the majority of cases the failure by the employer to offer a trial period in an alternative role, where one is available, will render a dismissal by reason of redundancy to be unfair.