George v London Borough of Brent

A contractual or statutory entitlement to a trial period in alternative employment does not make a redundancy dismissal automatically unfair when it is denied. The denial is a circumstance to be assessed under section 98(4) of the Employment Rights Act 1996, having regard both to the employer’s reason for refusing it and to its significance for the employee.

Guidance in Software 2000 on compensation after an unfair dismissal cannot determine the prior question of whether a dismissal was fair. In particular, an analysis based on repealed section 98A(2) must not be imported into the section 98(4) assessment.

The claimant, a Library Manager placed at risk of redundancy following a restructuring, was offered a lower-graded Customer Service Officer post. The employer conceded that she had been contractually entitled to a four-week trial period but had not been offered one. She refused the post and was dismissed for redundancy.

After an earlier remittal, the Employment Tribunal held that the dismissal was fair. It reasoned that the claimant would not have accepted the post even if a trial period had been offered, relying on a summary drawn from Software 2000 Ltd v Andrews and Ors [2007] ICR 825. The appeal concerned whether that reasoning wrongly conflated the repealed procedural provision in section 98A(2) with the fairness assessment required by section 98(4) of the Employment Rights Act 1996.

1. Appeal allowed. The Employment Tribunal erred in law by allowing its assessment of fairness under section 98(4) of the Employment Rights Act 1996 to be confused with the approach formerly required by repealed section 98A(2).

2. The denial of a contractual trial period, and any breach of section 138(3), did not of itself make the redundancy dismissal automatically unfair. Each was a potentially important circumstance in the overall section 98(4) assessment. The Tribunal had to decide whether, viewed in the round, the employer acted reasonably in refusing the trial period and what significance that refusal had for the employee.

3. The summary at paragraph 54 of Software 2000 Ltd v Andrews and Ors [2007] ICR 825 was concerned with compensation following a finding of unfair dismissal. It was accurate when given, but required caution because it included a stage based on repealed section 98A(2). It was not guidance for deciding the logically prior question of fairness under section 98(4).

4. The Employment Tribunal’s conclusion that dismissal would in any event have occurred, and was therefore fair, showed that it had applied the repealed provision’s reasoning to the section 98(4) issue. The error might have affected the result. The Appeal Tribunal could not cure it by making its own factual inferences as to whether the breach rendered the dismissal unfair.

5. The matter was remitted to the same Tribunal. It was to reconsider fairness solely under section 98(4), considering the employer’s reason for not offering a trial period and the claimant’s position. Further evidence was permitted only on those confined issues. Proportionality outweighed the concern that the Tribunal would have a further opportunity to decide the matter.

• Employment Appeal Tribunal: Allowed the appeal from the Employment Tribunal’s decision of 13 November 2014 and remitted the section 98(4) issue to the same Tribunal.
• Employment Appeal Tribunal: An earlier appeal, heard on 27 May 2014, had remitted the case to the Employment Tribunal to determine entitlement to a trial period and reconsider fairness and compensation.
• Employment Tribunal: Held that the claimant had not been unfairly dismissed in reasons sent to the parties on 15 December 2014.