Optical Express Limited v Williams (Employment Appeal Tribunal)
Ms Williams had been working as a manager in the dental clinic at a branch of Boots. Optical Express Limited bought all the dental clinics and closed the one of which Ms Williams was manager. Ms Williams was offered alternative employment as a manager in the Optical Department, on the same salary as she was on previously, and was given a four week trial period in accordance with Section 138 Employment Rights Act 1996 (“ERA”).
The new role entailed working within a retail environment and did not use her skills connected to managing a dental clinic. Ms Williams did not consider the new work as “suitable” as it was perceived to be at a lower status and level of responsibility. Both Ms Williams and her solicitor wrote to Optical Express several times to express this view. Ms Williams continued to work, however, and resigned after six weeks; two weeks after the conclusion of the four week’s statutory trial period.
Ms Williams brought a claim for a redundancy payment by reason of constructive dismissal, claiming that the letters she and her solicitor wrote constituted a notice to terminate under Section 138(2) of the ERA, whereby the employee has a period of four weeks in which to decide whether any alternative employment offered is suitable. If the work is not suitable any termination would then be regarded as a dismissal by reason of redundancy, from the date on which the original contract ended.
The Employment Tribunal did not follow this reasoning and found that a common law trial period existed which could be for a time period longer than four weeks. It cited the decisions held in Turney v CW Cheyney & Son in 1979 and Air Canada v Lee in 1978, where it was held that termination could be deemed to be constructive dismissal if new terms and conditions were imposed on the employee in a potential redundancy situation. An employee may well continue to work for that employer while protesting at the changes and it is considered that a common law trial period is in place.
On appeal, the Employment Appeal Tribunal overruled this decision, basing their decision on the fact that a statutory trial period of four weeks was in existence and that the situation was a very clearly one in which there was an offer of reengagement in accordance with Section 138 of the ERA. It was stated that the idea of a common law trial period running alongside a very comprehensive statutory trial period was illogical. In both the cases cited by the Employment Tribunal, no statutory trial period had existed. Furthermore, any extension of the statutory trial period would have to be previously agreed in writing and when they are it is usually done for retraining.
The Employment Appeal Tribunal found that even if Ms Williams was under pressure to accept the trial period and she was still free to give notice shortly thereafter (i.e. during the trial period itself). She did not. The reason for the termination was the resignation of Ms Williams. This could not be regarded as a redundancy because the trial period was over by then, and so no redundancy payment was due.
