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A statutory trial period can only take effect after employment has ended

Gateley Legal

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If alternative employment is offered in a redundancy situation the employee will be entitled to a four-week statutory trial period.  In East London NHS Foundation Trust v O'Connor it was highlighted that this statutory trial period can only begin when the employment has been brought to end. Any other trial period will not fall within the statutory provisions that state the employees loses entitlement to a statutory redundancy payment if they fail to reject the alternative within the fixed four-week period. 


Mr O’Connor was informed that his post was at risk of redundancy and in April 2017 received confirmation that his role was to be ‘deleted’. He was offered a trial period in another role to commence in July 2017. After the end of the trial Mr O’Connor asked for a different role. No other roles were agreed and whilst it was argued that the employment had ended after the trial period the employer gave him pay lieu of notice. Mr O’Connor applied for a statutory redundancy payment. 


The employer's position that Mr O’Connor was not entitled to a redundancy payment as he had not objected during the statutory trial period was rejected. It was held that Mr O’Connor had not actually been on a statutory trial period as he had not been dismissed prior to commencing the trial. He had been told that his role was to be deleted which was not the same as dismissing the employee. That and other communications had indicated that his employment might continue in some capacity.


It is a common error to believe that any trial period will fall within the scope of the statutory scheme in a redundancy situation. However the legislation is clear that before a statutory trial period can take place the original contract of employment must have been ended. Often employers and employees agree some sort of trial period of their own when a position is under threat of redundancy. This will be based on a temporary variation not a statutory trial period and issues regarding when the employee may reject the position and what notice is due will still have to be addressed.

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