George v London Borough Of Brent

An Employment Tribunal must give intelligible reasons for deciding whether a redeployment policy entitled a redundant employee to a trial period. Where the policy’s scope has been extended for a reorganisation, the Tribunal must explain coherently why the trial-period provisions did or did not apply.

In assessing fairness under section 98(4) of the Employment Rights Act 1996, it is not conclusive that the employee rejected alternative employment for another stated reason. A refusal of a trial period may materially affect whether dismissal was reasonable, particularly where the employee was entitled to that period and the alternative role involved changed status or location.

The Claimant, a library manager placed at risk of redundancy, was offered a Customer Services Officer role two grades below her former role during a reorganisation. The Respondent had agreed with trade unions to extend the normal redeployment range to two grades below. It refused her request for a four-week trial period. She declined the role and was dismissed for redundancy.

The Watford Employment Tribunal dismissed her claims for unfair dismissal and race discrimination. It concluded that she was not entitled to a trial period and that the offer of alternative employment was reasonable. The Claimant appealed on two permitted grounds concerning the refusal of a trial period.

The central issue was whether the Tribunal had adequately explained its conclusion on entitlement to a trial period and, if not, whether its unfair-dismissal conclusion could stand.

1. Appeal allowed and remitted. The Tribunal’s reasoning on the trial-period issue was plainly unsatisfactory and did not meet the required standard for reasons. Its statement that redeployment did not attract a trial period was inconsistent with the Redeployment Procedure. Its alternative reference to “deployment” did not explain why the Claimant’s move, after the redeployment range had been extended, fell outside the Procedure.

2. The Appeal Tribunal did not find perversity. Although the Claimant’s argument that the policy applied was strong, the stringent test for perversity was not met because the Tribunal might have had material not before the Appeal Tribunal. The established error was insufficient reasoning.

3. The defective reasoning infected the conclusion on fairness under section 98(4) of the Employment Rights Act 1996. The Tribunal had decided that the dismissal was fair “in the circumstances set out above”, which included its unexplained conclusion that no trial period was due. It was not decisive that the Claimant had also objected to her proposed location. A trial period could affect the reasonableness of accepting a role at a different location and of lower status. Elliot v Richard Stump Ltd showed the potential importance of a trial period both to clarity about redundancy rights and to testing whether changed working relationships would work.

4. The case was remitted to the same Tribunal. It must decide afresh whether the Policy entitled the Claimant to a trial period and then reconsider fairness under section 98(4). It may also consider Polkey and remedy, with any further evidence confined to the identified issues.

• Employment Appeal Tribunal: Appeal allowed. The unfair-dismissal issue was remitted to the same Employment Tribunal: [2014] UKEAT 0507_13_2705.
• Employment Tribunal, Watford: On 3 January 2013, dismissed claims of unfair dismissal and race discrimination. Its reasoning concerning the trial period was set aside for reconsideration.