What’s the alternative? (when a suitable role might still be a redundancy)

27th November 2023

Employment Associate, Claire Treacy discusses what employers should keep in mind when addressing redundancy cases.

Our work with clients is showing an increase in redundancy activity.  The driver tends to more commonly be a push to focus, streamline or pivot rather than dire financial performance but the fundamental processes and options available to an employer remain the same.  The recent case of Mid and South Essex NHS Foundation Trust v Stevenson & Others emphasises the questions to be considered at the part of the process when you may be offering (and the employee is considering the offer of) “suitable alternative employment”.

In this case the claimants were each employed as Head of Human Resources. Their roles became redundant because of a restructure. The claimants were offered alternative employment in the role of Senior HR Lead.  Both claimants refused the offers and they were dismissed as redundant.  The respondent refused to pay redundancy payments to the claimants, contending that they had unreasonably refused offers of suitable employment. The claimants claimed unfair dismissal, breach of contract and redundancy payments.

The important question is whether the claimants “unreasonably” refused an offer of employment that was suitable in relation to them. The answer to the question of whether the alternative employment was suitable in relation to the claimants can be relevant to the question of whether it was refused unreasonably, because the “more suitable the offer, the easier it may be for the employer to show that the employee’s refusal of the offer was unreasonable”.  In this case it was decided by the Judge that the claimants’ perceptions of the differences in the offer (they said there was a loss of autonomy or status) was “objectively groundless”.  In other words, the judge decided that the jobs offered were suitable alternatives to the jobs they were being made redundant from and the reasons for refusing the jobs were baseless.  Nevertheless, the claimants were not being unreasonable in refusing to accept the jobs.  It was the personal perceptions of the individuals that counted.

The lesson from this case is that employers should keep in mind that they may need to actively dispel or correct any inaccurate perceptions about an alternative role by giving clear and detailed information about the offer and engaging with employees about their possible objections.

If you would like more information on how to deal with redundancies, visit our website page here or contact Associate, Claire Treacy.

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