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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Is an employer allowed to place criteria on trialling alternative

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Is an employer allowed to place criteria on trialling alternative work when an employee is faced with redundancy
Hello, my name is XXXXX XXXXX it is my pleasure to be able to assist with your question today. Please let me know if they have basically refused you a trial and asked you to make a decision on the job without having trialled it?
Customer: replied 5 years ago.

Yes, they refused a trial despite me asking for this and stating what I considered valid reasons.


I thought under the Employment Act section 138 all employees have to be offered a statuatory trial period when alternative work is offered



Yes, the ERA does allow employees to ask for a trial period if "the capacity and place in which the employee is employed, and the other terms and conditions of his employment, differ (wholly or in part)" from the corresponding terms of the employee's previous employment.

The only time a trial may be refused is if the differences in your contract are insignificant or trivial.

If your employer refuses to allow you a trial period and you then refuse the offer of the job based on that, you are likely to be acting lawfully. In fact there is case law to back this up - in Elliot v Richard Stump Ltd the employee had reasonably refused an offer of alternative employment when their employer refused to allow them a trial period. The tribunal also confirmed that unless the contract is renewed on the same terms the employee will be entitled to request a trial period in the new job.

Please take a second to leave a positive rating as that is a very important part of our process. Your question will not close and I can continue providing further advice if necessary. Thank you
Customer: replied 5 years ago.

I accepted the alternative work after being told I did not meet criteria for a trial period. I now believe that I should have been given a trial period. The role does not differ but the geographical area that I work does.


I accepted the alternative work rather than being made redundant as it was outlined that if we refused alternative work that it would effect our redundancy status.

refusing suitable alternative work can result in you losing your entitlement to redundancy. However, if you had refused this when you were not offered a trial when one was due then your refusal would have been reasonable as per the case I mentioned in my earlier response
Customer: replied 5 years ago.

What would your advise be from here

do you actually wish to remain in the job?
when were you placed in it?
Customer: replied 5 years ago.

I have resigned from the position because it is not possible to manage my new area from where I live. As I had stated when I requested a trial period.

I had a 4 day agressive consultation process starting 4th December and if I had not felt forced into a corner during that period I would have been made redundant on the 31st January.


All information was not on the table during consultation regarding the new role new company stratergy was not disclosed and the fact that I live 15.1 miles from territory means that I have to claim those miles as private miles and am re-imbursed for them in what appears to be a wage rise but is not.






when did you resign? How long did you work there for?
Customer: replied 5 years ago.

I resigned on the 11th February, my last day of work is 1st March and I have been with the company since September 2010.



Now that you have resigned, but are still working there you only have a couple of options:

One is to ask the employer to either take you back in a suitable position, or to agree to a redundancy.

If they refuse and you proceed with the resignation then all you can do is make a claim for constructive dismissal in the employment tribunal.

As your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do. I can then continue providing further advice and answer follow up questions if needed. Thank you.
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 5 years ago.

Many thanks this has been most helpful


Kind Regards



My pleasure and all the best