East London NHS Foundation Trust v Mr David O'Connor

JurisdictionUK Non-devolved
JudgeJudge Auerbach
Neutral CitationUKEAT/0113/19/JOJ
CourtEmployment Appeal Tribunal
Subject MatterRedundancy,Redundancy - Trial period,Not landmark
Date29 October 2019
Published date30 October 2019
Copyright 2019
Appeal No. UKEAT/0113/19/JOJ
EMPLOYMENT APPEAL TRIBUNAL
ROLLS BUILDING, 7 ROLLS BUILDINGS, FETTER LANE, LONDON, EC4A 1NL
At the Tribunal
On 13 September 2019
Judgment handed down on 29 October 2019
Before
HIS HONOUR JUDGE AUERBACH
(SITTING ALONE)
EAST LONDON NHS FOUNDATION TRUST APPELLANT
MR DAVID O’CONNOR RESPONDENT
Transcript of Proceedings
JUDGMENT
UKEAT/0113/19/JOJ
APPEARANCES
For the Appellant MS NICOLA NEWBEGIN
(of Counsel)
Instructed by:
Hempsons Solicitors
100 Wood Street
London
EC2V 7AN
For the Respondent MS KATE ANNAND
(of Counsel)
Instructed by:
Thompsons Solicitors LLP
Condor House
5 -10 St Pauls Churchyard
London
EC4M 8AL
UKEAT/0113/19/JOJ
SUMMARY
REDUNDANCY – Trial Period
In Ma rch 2017 t he Claimant in the Employment Tribunal was informed that, as a result of a
reorganisation, his current role of PSI Worker was to be deleted with effect on 3 July 2017, and
he was at risk of redundancy. He began a trial of a different role of Care Coordinator on 3 July
2017. The parties disagreed as to whether it was suitable alternative employment. The Claimant
pursued a grievance, which was unsuccessful. The Respondent again offered the Claimant the
Care Coordinator position, which he declined. It then dismissed him, in December 2017.
The Employment Tribunal decided, as a preliminary issue, that the Claimant had not actually
been dismissed prior to startin g the trial in the new role on 3 July 2017, and therefore that was
not the start of a statutory trial period. He had only first been dismissed in December 2017.
The Respondent’s appeal against that decision failed. The principal ground of a ppeal was that
the Tribunal erred by not treating the notification of the deletion of the PSI Worker role, on an
identified date, as a dismissal for the purposes of section 136(1)(a) Employment Rights Ac t
1996, having regard to the fact that the Claimant was employed specifically in that role.
However, there is no rule of law that notification of the deletion of the post in which the employee
is employed must inevitably amount to notice of dismissal. It depends on all the facts and
circumstances of the case. In this case, the content of the relevant communications, and all the
circumstances, were properly considered by the Tribunal to point to the conclusion that the
Claimant had not been dismissed as of 3 July 2017, and therefore that the trial which he began
on 3 July 2017 was not the start of a statutory trial period. Other grounds of appeal also failed.

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