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Emma O'Connor
Emma O'Connor,
HEAD OF TRAINING
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When is suitable alternative employment 'suitable'?
20 November 2013

Whether an employee reasonable or unreasonably refuses an offer of suitable alternative employment is an important one as it could affect their entitlement to redundancy pay. We look at a recent Court of Appeal decision concerning an employee’s reasonableness in turning down what appeared to be a reasonable offer.

Facts

In the case of Devon Primary Care Trust v Readman Mrs Readman had worked as a community nurse for over 30 years. She was told that she was at risk of redundancy and was subsequently offered a number of alternative jobs. One job was almost identical to her current role; however, it was in a hospital setting as opposed to in the community. Mrs Readman rejected this job offer on the grounds that she had made the conscious decision to work in the community rather than in a hospital. The Hosptial argued she had unreasonably refused a suitable alternative offer of employment and therefore refused to pay her redundancy pay – this equated to about £8,500.

Was she offered a suitable alternative role?

Some of our readers may remember this case from February 2012 where we reported on the EAT decision in which Mrs Readman was successful in overturning an ET decision that the role offered was reasonable. Her employer’s appealed to the Court of Appeal. The Court of Appeal have now confirmed the EAT was right to hold that Mrs Readman had reasonably refused the alternative role offered to her by the Hospital - but for a different reason!

Rather than the ‘band of reasonable responses’ test put forward by the EAT, the Court of Appeal have instead held that the correct test for determining reasonableness is “whether this particular employee, in this particular situation had acted reasonably in refusing the offer of employment” . This case will now go back to the ET to reconsider whether Mrs Readman acted reasonably in refusing the offer in all the circumstances.

Comment

This is an important case and an important issue for employers – particularly those with long serving employees who have a large statutory redundancy payment entitlement. It is also important for HR managers who often find themselves managing a re-deployment pool in a redundancy situation. If an employer is to successfully argue that it has fulfilled its obligation to look for suitable alternative employment it may need to do more to match employees to roles, rather than simply sending out a vacancy list.

For advice on redundancy procedures, including selection and redeployment, please contact our Employment Team on [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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