Even tribunals get it wrong – redundancies and trial periods

• Effective communication with staff plays a critical role when managing the redundancy process;
• A trial period now proves to be a key part of redeployment
• A puzzling decision on a case which was referred the Employment Appeals Tribunal (EAT)

A case that was heard by a tribunal twice already, was brought in front of the EAT

Background

London Borough of Brent upon facing financial difficulties came to the decision to undertake a cost saving initiative and restructure, which resulted in redundancies. The verdict was to reduce the number of Library Managers from six to two. The Claimant (Ms George) was one of said managers and consequently, was obliged to compete for one of the two new Library Manager posts. Ms George was unsuccessful, however, was offered an alternative Customer Service Office (CSO) role in order to avoid redundancy.

Ms George raised concerns at the time, due to a different location of the post, as well as the relationship with her potential line manager who at the time, was a junior member of staff, one of whom she had previously made a complaint about and  refused a trial period, which lead to Ms George refusing the offer and receiving a notice of termination.

So, what is the issue?

The Respondent decided not to agree to the trial, assumed that because she undertook very similar tasks and employed in a more senior role in the same Department this would not be necessary. They assumed that a provision of maintaining her previous salary for a 12-month period would also be enough. Regrettably, for London Borough of Brent, this decision was made completely ignoring Ms George’s worries.

Employment Tribunal (ET) ruling – more than perplexing!

The ET proved to be no better when assessing the case during those first two hearings and failed to note or mention that it was, in fact, the Respondent that had breached the contract and found Ms George to be at fault for her employer’s failings. 

Their conclusion stated that “she was not disadvantaged by the Respondent’s failure to offer a trial period”, which is quite baffling considering this is a statutory right and the role of an ET is to ensure employers treat their staff in accordance with law and had failed to consider her concerns.

The ET also stated that even though not offering a trial period was erroneous, and that “the offer of the CSO role without a trial period struck me then, as it does now, as fair and reasonable”. We can only ask ourselves the question: How can a process be fair and reasonable if it is deemed unlawful?

EAT saw some sense

Fortunately for Ms George, the EAT saw right through all the above failings and concluded that the case should be heard once more as a new case. The process would start from fresh, not taking into account what was previously found. We are awaiting yet another hearing of a case relating to something, that could have been so simply resolved before it even reached the tribunal.

Aspire solution

Current political uncertainty brought by the effects that Brexit can bring on businesses will require careful financial planning and in some cases cost cutting. Restructuring is one of the popular options open to businesses, although it is hardly ever a painless process.

Restructuring requires appropriate planning, clear communication and specialist employment law knowledge to ensure compliance. Aspire can manage the whole process from start to finish and provide practical support with those difficult conversations.