This article was published on January 8th, 2019
Is it unfair not to offer a trial period for a more junior role even if the employee did not complain at the time? Yes, if it is a contractual right, said the employment appeal tribunal in George v London Borough of Brent. Trial periods allow an employee to try out a new role whilst being able to fall back on the redundancy package if the new role does not work out.
The employee was made redundant. She was offered a more junior role, but the employer refused to offer a trial period. As a result, the employee rejected the offer, was dismissed and then claimed unfair dismissal. The employer’s own contractual policy said that the employee had a contractual right to a four-week trial period. They admitted they were in breach of contract not offering one. The important question was whether the denial of the trial period made the dismissal unfair.
The EAT said that a failure to offer a contractual trial period was likely to make a dismissal unfair. They sent the case back to a new employment tribunal panel to decide about the fairness of dismissal.
This is another case which shows how important it is for employers to follow their own procedures in dismissal cases. Failure to do so might render an otherwise fair dismissal unfair.