Right to refusal: redundancy and alternative job offers

Employment law solicitor, David Dixey, discusses the issue of redundancy and alternative job offers.

Redundancy is one of the many areas of employment law where there is a lack of clarity over how the courts will apply principles to the facts of individual cases. Fortunately, the principles involved in considering whether an employee has been unreasonable in refusing an alternative job when facing redundancy have recently been reviewed.

When making redundancies employers can offer employees suitable alternative employment which, if accepted, removes the employee’s right to a redundancy payment. However, employees have the right to refuse an offer of alternative employment and maintain their right to a redundancy package if the employee considers the offer unreasonable.

Employees cannot maintain their right to a redundancy payment by unreasonably refusing the offer of alternative employment or by accepting a position and then unreasonably terminating it during the trial period.

Often the main point of contention in redundancy cases is whether the employee was reasonable in refusing the alternative employment offered to them. Under sections 141(2) and 141(3)(b) of the Employment Rights Act 1996 a tribunal must consider:

1. whether the alternative jobs offered by the employer would be suitable employment for the employee, and
2. whether any refusal of these jobs by the employee was reasonable.

Assessing the suitability of a role is highly subjective as it is the suitability of the role for the particular employee in question, rather than for a general collective or type of employee, which must be determined. This assessment must therefore consider the extent to which each aspect of the role/s on offer match the employee. This includes taking into account:

• the tasks required to be undertaken as part of the role
• the terms of employment including wages, holiday entitlement and working hours
• the level of responsibility and status
• location and commuting requirements

The alternative jobs on offer do not have to be equivalent to, or even broadly the same as the employee’s current role in order to be considered suitable. However, the greater the difference between the two positions the harder it may be for the employer to prove suitability of the job for the employee.

In considering the separate issue of whether an employee is reasonable in refusing an employer’s offer of suitable alternative employment, a tribunal will determine whether the employee’s reasoning for the refusal was sound and justifiable from the employee’s point of view at the time the offer was refused.

Importantly for employers, ‘from the employee’s point of view’ means employees would be able to refuse a reasonable offer on the grounds of his or her personal perception of the role on offer and as such, a refusal may be considered permissible even if others would not have thought his/her reasons were justified.

David Dixey is Holmes & Hills Solicitors' Employment Law specialist. David is based at Holmes & Hills Solicitors in Braintree.