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The statutory trial period
Employees have the right to a statutory trial period of four weeks in the new job, if it differs from the job they were doing previously. This can be extended for the purposes of training. The four weeks should be calendar weeks, not working weeks (Benton v Sanderson Kayser [1989] IRLR 19).
Under section 138 of the ERA 96, the employer should give the worker a written copy of the agreement specifying the terms and conditions of the new work and the date of termination of the trial period. If an employer refuses to offer a trial period, the employee can claim unfair dismissal (Elliot v Richard Stump [1987] IRLR 215).
An employee who refuses an offer of alternative work without accepting the trial period will not automatically lose the right to a redundancy payment. However, a tribunal can take this refusal into account when deciding whether or not the employees actions were reasonable, including looking at the reasons for rejection (East Suffolk Local Health Services v Palmer [1997] ICR 425) and the differences between the new and the old job.
An employee who agrees to a trial period in the new job will be entitled to redundancy pay if the post proves not to be suitable as long as they reject the role within the trial period. By working beyond the four week trial period, the employee will lose the right to a statutory redundancy payment:
Mr O’Hara accepted an offer of alternative work. He then decided it was unsuitable and wrote to his employer to explain this but carried on working. The EAT decided that his letter did not amount to a notice to terminate his employment, and since he had worked beyond the four weeks, he had no right to redundancy pay.
Reality (White Arrow Express) v O’Hara EAT/0447/03
An employee who terminates the employment contract during the trial period is treated as having been dismissed for redundancy on the date the original contract ended. The three month deadline for any unfair dismissal claim runs from the original contract end date not the end of the trial period, meaning that an employee who wants to bring a claim for unfair dismissal must act quickly.
Although the law lays down a maximum four-week trial period which can only be extended for the purposes of training, negotiators are free to sign contractual agreements which give longer (but not shorter) trial periods. For example:
Michael Large’s post became redundant following a reorganisation. His employer did not want to lose him and offered him an alternative post, acknowledging that it might not be suitable. Large was offered support in the new post and a six-month probation period. The expected support did not materialise and his health deteriorated as he tried to cope with the new post. He was offered other jobs but none were suitable, and eventually he asked for redundancy. When the employer refused, arguing that he had been offered other suitable work, Large resigned and claimed constructive dismissal.
The EAT said Large had a contractual right to his redundancy pay. This had been the basis of his agreement to try out the new job. It also found that the failure to supply the promised support was a breach of contract, so that his resignation was a constructive dismissal.
Inchcape Retail v Large EAT/0500/03
An employee who refuses alternative employment believing it is unsuitable should tell the employer, and be willing to consider any other options put forward:
Mr Cowan was offered alternative employment which his employer believed was suitable. Although Mr Cowan disagreed, he did not discuss his concerns or the nature of the offer with his employer. Instead, he simply failed to respond to the offer and claimed redundancy pay. The EAT said that the failure to respond was unlikely to be regarded as reasonable.
Lincoln & Louth NHS Trust v Cowan EAT/895/99