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If an employee at risk of redundancy volunteers for a new role prior to redundancy selection, are they entitled to a statutory trial period?

25 March 2021

 

If one employee in a pool of four employees at risk of redundancy volunteers as part of the consultation to take on a new role prior to any scoring selection process, are they entitled to a statutory four-week trial? If so, and at the end of that trial, they are not happy and it is agreed that the alternative role is not a suitable position, is this particular employee automatically selected for redundancy or does the employer revert back to redundancy consultation with all in the pool and commence the scoring process?

There remains a question mark over whether an offer of alternative employment must be made after notice of termination has been given otherwise it will not count for the purposes of the statutory scheme. However, we conclude that there is a reasonable argument to be made, that this is not the case.

If the statutory scheme is triggered then the trial period applies. The trial period provisions are, however, predicated on the reason for ending the original contract, being redundancy (section 138(1)). In the scenario you describe, it could be argued that the termination of the original contract was by consent where there is a volunteer to move from one contract to another, and so section 138 does not apply (section 138 only affects dismissals under Part XI, which includes redundancy payments and so on). However, where that is in the context of a redundancy situation, we cannot imagine that would hold much weight, especially given the decisions in a collective consultation context that volunteers do count.

If the employee's original contract was terminated, and that termination was due to redundancy (both points to be considered on the facts), then a statutory four-week trial period is applied to the new role. If the employee terminates the new contract during that four-week period then they are treated as dismissed at the end of the original contract and by reason of redundancy (section 138(4)). They will remain entitled to a statutory redundancy payment (SRP), unless the role was suitable and they unreasonably refused it (section 141(4)).

Of course you would need to consider whether there was some other arrangement where their original contract would remain open if the new role did not work out (in which case they were arguably not dismissed by reason of redundancy so they return to the original role and the employer starts the redundancy process afresh). Also (as per the above) whether their original contract terminated by reason of redundancy at all.

The circumstances in which the right to an SRP is retained are very fact-dependent, particularly in terms of what happened to the original contract, what was agreed and whether it can be said that, if the original contract did terminate, it terminated by reason of redundancy.

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