Unsuccessful trial period in alternative work

Where an employee accepts an alternative post during a redundancy programme, if the terms and conditions differ from those of their current post, there’s a statutory trial period for both parties to establish whether the post is suitable for the employee. If the trial period is unsuccessful, the position reverts to that of redundancy and the employee’s employment will terminate.

Trial period

During a redundancy programme, you may find that you're able to offer a redundant employee an alternative post within your business. If the terms and conditions of employment for the new post differ from those of the current post, there’s a statutory trial period of four weeks, beginning with the date on which they start work under the new contract, for both parties to decide whether the alternative work is suitable for the employee. There are various statutory requirements to comply with - see our Offer of Alternative Work.

Unsuccessful trial period

If, during or at the end of the trial period, you reasonably conclude that the job isn’t suitable for the employee for a reason connected with or arising out of any difference between the new employment contract and the employee’s original employment contract, the position reverts to that of redundancy and their employment will terminate, assuming there’s no other alternative post available. For example, if the new contract involves different job duties, you might decide that, due to the employee’s performance in the trial period, they’re simply not capable of these new duties.

Redundancy payment

Assuming the employee has two years’ continuous employment, they retain their right to a statutory redundancy payment in these circumstances. The date of the redundancy for the purposes of calculating a statutory redundancy payment is the date on which their employment under the original contract ended, not the date of termination of employment after the trial period. However, the latter date is still the date of termination for the purposes of an unfair dismissal claim.

Redundancy termination letter

Our Unsuccessful Trial Period in Alternative Work letter outlines that the employee has been undertaking a trial period in the new post and then it states that the trial hasn’t been successful and you don’t believe the new post is suitable. As a result, it confirms that their employment will terminate on the ground of redundancy and it sets out the relevant termination details. We’ve taken these from our Redundancy Termination Notice. Finally, we’ve given a right of appeal against the redundancy. An employee has no statutory right to appeal against a redundancy dismissal but it's advisable to provide an opportunity to appeal as part of an overall fair procedure.