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Redundancy: Trial Period

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Was a deletion of a post a redundancy dismissal, triggering a statutory trial period?

Not on the facts of this case, held the EAT in East London NHS Foundation Trust v O'Connor.

Mr O'Connor was employed by East London NHS Foundation Trust as a Psycho-Social Intervention ("PSI") Worker. In March 2017 he was informed that, as a result of a reorganisation, his current role of PSI Worker was to be "deleted" with effect from 3 July 2017, and he was at risk of redundancy. He began a trial of a different role of Care Coordinator on 3 July 2017. There was a dispute as to whether this was suitable alternative employment. O'Connor pursued a grievance, which was unsuccessful. The Trust again offered him the Care Coordinator position, which he declined.

It then dismissed him, in December 2017. But the Trust declined to make a redundancy payment. Its position was that a statutory trial period had ended on 9 August 2017. In its view the Care Coordinator role had been suitable alternative employment which was unreasonably refused, and he was not entitled to a redundancy payment

A tribunal decided that O'Connor had not actually been dismissed prior to starting the trial in the new role on 3 July 2017, and therefore that was not the start of a statutory trial period. He had only first been dismissed in December 2017.

The EAT upheld this decision. There is no rule of law that notification of the "deletion" of the post in which the employee is employed must inevitably amount to notice of dismissal. It depends on all the facts and circumstances of the case. In this case the content of the relevant communications, and all the circumstances, were properly considered by the Tribunal and pointed to the conclusion that the employee had not been dismissed as of 3 July 2017, and therefore that the trial which he began on 3 July 2017 was not the start of a statutory trial period. The case was remitted to the Tribunal for determination of the question whether the dismissal in December 2017 was by reason of redundancy and whether a redundancy payment was due.

Thanks to Dr John McMullen of Stone King LLP for preparing this case summary.