After a steady flow of harassment related cases over the past few weeks we move back into the far more mundane world of redundancy.

The question in this case is:

If a role is deleted and the employee works in an alternative role for more than four weeks, does this prevent the employee from being entitled to a redundancy payment?

Mr O’Connor, the Claimant, had been employed by East London NHS Foundation Trust as a Psycho-Social Intervention Worker. The Claimant had 19 years’ service. The Respondent notified the Claimant that his role was at risk of redundancy. In April it was confirmed that his role was to be deleted but the Respondent offered the Claimant a trial role in another role.

The trial period commenced in July and at the end of the period the parties agreed as to whether the role was suitable alternative employment. The Claimant asked if he could be placed in a different role, the Respondent offered an extended trial in the same role. The Claimant went sick and lodged a grievance about the suitability of the new role.

The Respondent rejected the grievance and wrote to the Claimant notifying him that they believed his employment in his Psycho-Social role had ended in August, the end of the trial period. Since then he had remained employed in suitable alternative employment. The Respondent served the Claimant notice and his employment ended in December.

The Claimant brought a claim before the Employment Tribunal. The Claimant argued he had not been notified his employment had terminated, merely that his role had been deleted. In any event his new role was not suitable alternative employment and therefore he was entitled to a statutory redundancy payment – which would have substantial given his 19 years’ service.

The Employment Tribunal allowed the claim. It held the Claimant had not actually been notified he was dismissed at the time he commenced his trial position. As such, the first time he was notified of dismissal was December, five months after his role was deleted, and thus he had not worked his trial period. Despite this he was still entitled to a redundancy payment as the December termination was the first time he had his dismissal confirmed.

The Respondent appealed but the Employment Appeal Tribunal rejected the appeal. It agreed with the Employment Tribunal’s decision. The EAT held that despite the trial period in the new role lasting longer than four weeks, the facts of the case meant it was not a statutory trial period in suitable alternative employment. As such the Claimant was entitled to statutory redundancy pay.

The takeaway point:

In this case, no, working for four months in a trial role will not prevent an employee from being entitled to a redundancy payment if the redundancy is not properly confirmed, or, the role is not actually suitable alternative employment.

Whilst the employee in this case would have received a substantial payment as a public sector employee with a lengthy service period. The cost of defending such a claim to EAT is surely not cost-effective unless other such employees would be able to bring a similar claim.