• Robert Spicer

More redundancy law and practice

Suitable Alternative Employment

  • Unreasonable refusal of suitable alternative employment results in loss of statutory redundancy pay. S. 141, ERA.

  • Offer must be made before end of old job and must start within four weeks.

  • Burden of proof on employer to show that suitable offer was made: Kitching v Ward.

  • Where an employee states that there is no interest in alternative employment, and the employer therefore does not make an offer, the employee is entitled to redundancy payment: Simpson v Dickinson.

  • Offer of alternative employment must set out terms of new job and differences from old job: Havenhand v Thomas Black Ltd.

  • Where an employee accepts the new offer, they are treated as never having been dismissed. They may complain of unfair dismissal from the old job: Hempell v WH Smith & Sons Ltd; Jones v Governing Body of Burdett Coutts School.

· Hindes v Supersine Ltd [1979] IRLR 343, EAT: offer of employment suitable only where reasonably equivalent.

· Carron Company v Robertson [1967] 2 ITR 484, Court of Session:reasonableness of refusal of employment offer depends upon different factors from those to be considered in deciding suitability of offer. Test of suitability is objective. A test of reasonable refusal depends upon reasons personal to employee.

· Dutton v Hawker Siddeley Aviation Ltd [1978] IRLR 390, EAT: a proposal for alternative work is not considered generally suitable where change of trade or type of work. Such an offer may be suitable where it involves temporary change of trade, which an employee may reject after trial.

Statutory trial period

An employee may try out the new job, where it is offered, for a trial period of up to four weeks. These are four calendar weeks and not four working weeks. Where the employee leaves within this period, they may claim redundancy pay in relation to the original redundancy dismissal. Benton v Sanderson Kayser Ltd.

Turvey v CW Cheyney & Son Ltd [1979] IRLR 105, EAT: contractual trial period starts when employee tries changes imposed by employer. This lasts for a “reasonable time” and is followed by the statutory trial period which lasts four weeks.

Air Canada v Lee [1978] IRLR 392, EAT: an employer imposing new terms of employment technically amounts to breach of contract. Held, employee has reasonable time to consider reaction to changes. In effect, there is a right to a reasonably long trial period for new terms to be assessed.

Turvey v CW Cheyney & Son Ltd [1979] IRLR 105, EAT: contractual trial period starts when employee tries changes imposed by employer. This lasts for a “reasonable time” and is followed by the statutory trial period which lasts four weeks.

Benton v Sanderson Kayser Ltd [1989] IRLR 19, CA: four weeks means four consecutive calendar weeks, not four working weeks.

Unreasonable refusal of a suitable offer

Burden of proof on employer to show that:

  • Offer was suitable

  • Refusal was reasonable.

Suitability includes job related factors, eg pay, hours of work and location.

Reasonableness relates to worker’s individual circumstances.

Change of work location: whether reasonable depends on factors including travel issues and childcare.

Case Examples:

Bird v Stoke-on Trent Primary Care Trust: B’s job was described as being at risk, following the restructuring of the NHS. She was invited to apply for whatever other posts were available. Unsuccessful applicants would be made redundant. B did not apply for any of the other posts because they were exclusively managerial. She was made redundant, but the employer refused to pay her redundancy payment of £70,000. The ET stated that B had refused to engage in the process of seeking alternative employment and had decided to secure the redundancy cash payment. B appealed to the EAT which allowed the appeal and remitted the matter to a fresh tribunal. It found that the ET had substituted its own view about the reasonableness of the reason for B’s refusal rather than considering whether someone in her particular circumstances could reasonably have taken the view of the alternative post which she did.

RR Donnelly Global Document Solutions Group Ltd v Besagni and others [2014] ICR 1008, EAT

Statute reference: Transfer of Undertakings (Protection of Employment) Regulations 2006, reg.7

B and others were employed by a local authority in its parking enforcement department. Contracts were transferred to R which confirmed that B and others would be required to relocate. B and others refused to relocate and were dismissed for redundancy. They complained of automatic unfair dismissal in that they had been dismissed for a reason connected with their redundancy. The ET upheld their claims, stating that the phrase “entailing changes in the workforce” did not apply to a change of location. R appealed to the EAT.

The appeal was dismissed. The fact that many transfers of undertakings involved a change in the workplace negated rather than supported an interpretation which involved a change of location. Otherwise, employees dismissed for refusing to relocate would be deprived of a finding of automatic unfair dismissal and that would go against the grain of the Regulations.

Carron Company v Robertson [1967] 2 ITR 484, Court of Session: reasonableness of refusal of employment offer depends upon different factors from those to be considered in deciding suitability of offer. Test of suitability is objective. A test of reasonable refusal depends upon reasons personal to employee.

References:

Kitching v Ward [1967] ITR 464

Simpson v Dickinson [1972] ICR 474, NIRC

Havenhand v Thomas Black Ltd [1968] 2 All ER 1037

Hempell v WH Smith & Sons Ltd [1986] IRLR 95, EAT

Jones v Governing Body of Burdett Coutts School [1998] IRLR 521, CA

Benton v Sanderson Kayser Ltd [1989] IRLR 19, CA

Bird v Stoke-on-Trent Primary Care Trust UKEAT/0074/11

Devon Primary Care Trust v Readman [2013] IRLR 878, CA

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