Sense and Suitability (in redundancy)
It is a well established principle that when an employee, in a redundant job, unreasonably refuses to accept an offer of suitable alternative employment the employer can treat the employee as being dismissed and the employee loses their right to a redundancy payment.
When determining whether a role is suitable there are two issues to consider; firstly, the suitability of the alternative employment and, secondly, the reasonableness of the employee’s refusal to accept.
The first issue requires an objective assessment of whether the job is appropriate for the employee. If the move involves a downgrade in status or a significant pay cut, then it is likely that the role will be unsuitable.
The second issue is more subjective. A job which involves a longer commute or different hours may be suitable for one employee but not for another. The employee’s personal and family commitments can and should be taken into account.
The Employment Appeal Tribunal (EAT) recently considered the issue of suitable alternative employment in the case of Bird v Stoke-on-Trent Primary Care Trust 2011.
Ms Bird is a physiotherapist, however, she held a management role in a hospital, spending about 80% of her time managing a team of 25 Physiotherapists and 20% of her time working in clinics. When Ms Bird originally applied for her role she was told that it may lead to her becoming a Consultant, which was her ultimate aim.
Following a reorganisation of the NHS Trust, Ms Bird was made redundant and offered three alternative posts. These were all Band 7, the same band as her current role. One role involved wholly clinical work and the other two involved a mix of both clinical work and management. However, a maximum of 20% of her time would be spent in management in either role.
Ms Bird rejected all three roles.
The purely clinical role was unsuitable because it would involve Ms Bird working on the same level as the staff she had previously managed. Ms Bird determined that the other two roles were unsuitable because she did not believe that she had the correct skill set. Ms Bird was subsequently dismissed without receiving a redundancy payment. She bought a claim in the Employment Tribunal.
The Employment Tribunal determined that one of the posts was suitable for her but did not consider both the objective and subjective strands of the test to reach their findings. They considered the refusal as one issue. Ms Bird appealed to the EAT, who over-ruled the Tribunal. The EAT ruled that there should be a subjective approach to determining the reasonableness of the employee’s refusal to accept an alternative role and the individual’s circumstances need to be taken into account.
Unfortunately for Ms Bird, this was not the end of the matter. The EAT ordered that the case is re-litigated in a fresh Tribunal so whether her refusal was unreasonable is still to be determined.
When offering a suitable alternative role to a redundant employee, it is very important for the employer to consider the whole picture. The two strand test needs to be applied and the issues of suitability and reasonableness must be dealt with separately.