Mr D O’Connor v East London NHS Foundation Trust — 2019

The tribunal identified the claim as a claim under section 163 of the Employment Rights Act 1996 for a statutory redundancy payment, and stated that no other claim was before it. It held a preliminary hearing limited to whether the claimant had been dismissed for the purposes of the statutory redundancy payment provisions, with the remaining issues to be decided later.

The claimant's Psychosocial Intervention Practitioner role was deleted as part of a restructure, and he began work on 3 July 2017 in a Band 6 Care-Coordinator role that the respondent treated as suitable alternative employment. The tribunal found that the correspondence did not communicate a dismissal at that stage: although an invitation letter said formal notice of dismissal was likely, no subsequent letter stated that the claimant had been dismissed or given formal notice of termination.

Applying an objective assessment of the contractual reality reflected in the correspondence, the tribunal concluded that the claimant was not dismissed until 22 December 2017, when the respondent terminated his employment and paid notice in lieu. It also held that the period in the Care-Coordinator role was not a statutory trial period under Part XI of the Employment Rights Act 1996, because such a trial period could only follow an actual dismissal. The case was then adjourned part-heard for determination of the remaining redundancy payment issues.