Redundancy and suitable alternative employment
Stevenson v Mid Essex Hospital Services NHS Trust
In deciding whether an entitlement to a redundancy payment is lost by the refusal of an offer of suitable alternative work, it’s important to consider the practical effects of any differences between the old role and the new role.
Each of the claimants worked as Head of Human Resources. Following a restructure to integrate the HR function across three trusts, their roles were made redundant. They were offered alternative employment in the role of Senior HR Lead but declined, citing significantly reduced levels of autonomy and status, uncertainty about the role because it was not set out in the consultation, lack of confidence about job security in the new post and a lack of confidence in the leadership of the HR team. In meetings with all three claimants, the Chief HR Director discussed amendments to the job description for the new role which would address these concerns. She made those amendments but did not send them to the claimants before their termination date. The employer decided that they had unreasonably refused offers of suitable alternative employment and that they would not be entitled to redundancy payments. A tribunal upheld that decision and dismissed their application for redundancy payments. The three claimants appealed.
The appeal was allowed.
Although the tribunal correctly stated the legal test and analysed the facts, it erred by not deciding the practical effect of certain differences between the claimants’ old roles and the allegedly suitable alternative roles, i.e. what difference it made that they would perform some functions only as ‘allocated’ or ‘directed’ when previously they had autonomy over them, what was the significance of certain duties which were part of the old roles but not of the alternative roles and what practical difference would be made by working for a group of three NHS Trusts rather than, as previously, for the employer only.
The questions of the suitability of the alternative employment and the reasonableness of the refusal were remitted to the same tribunal for reconsideration.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/000834_19_1407.html
Remember, it’s up to you as the employer to prove that any alternative employment is suitable and that any refusal by the employee is unreasonable. While suitability is tested objectively, in each instance it’s necessary to decide whether the proposed job - considered with reference to every part of it - was suitable for the employee, i.e. whether it suits his or her skills, aptitude and experience. Likewise, it’s necessary to decide whether the employee was reasonable in refusing the offer, i.e. had sound and justifiable reasons. This is judged from the employee’s point of view, based on the facts as they appeared or should have appeared to the employee at the time of the refusal. See also Redundancy – a guide in our Knowledge section.