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How about giving it a try?

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Does telling an employee that their role will be “deleted” amount to a redundancy dismissal? The EAT confirmed that it does not for the purposes of triggering a statutory trial period in the case of East London NHS Foundation Trust v. O’Connor.

Under section 138 of the Employment Rights Act 1996 (ERA), an employee is entitled to an automatic four-week statutory trial period in an alternative position if:

  • they have been dismissed (or given notice of dismissal) by reason of redundancy;
  • they accept an offer of alternative employment before their current contract ends;
  • the new contract begins either immediately after the end of the previous contract or within four calendar weeks of the end of the old contract; and
  • the terms of the new contract differ from their original contract.

If a statutory trial period is successful, the dismissal is in effect deleted. If a statutory trial period is unsuccessful, the employee is regarded as dismissed for statutory redundancy pay purposes as at the day the notice on their original job expired.

In the above case, the EAT found that the words used about deletion of the post did not amount to formal notice of dismissal being given in accordance with the first bullet point above. This meant that the trial period was not a statutory trial period.

Other points to watch out for which we regularly advise on:

  • employers will often encourage employees to try out alternative roles before giving notice of dismissal. If parties go ahead with this, they should do so with their eyes wide open as this would not fulfil the above criteria; and
  • a statutory trial period may be extended to last for longer than four weeks only for the purposes of retraining the employee in the alternative position. Any such extension should be formally documented. If an “extension” is for any other reason, it will take the parties outside the statutory regime.

This case will be covered in more depth in our November newsletter.