What is suitable employment?

Suitable Alternative Employment in a Redundancy Situation

A recently reported case has once again addressed the question of what does and does not constitute an offer of SUITABLE alternative employment where an employee is at risk of redundancy.

In the case of Readman v Devon Primary Care Trust, the Employment Appeal Tribunal was asked whether the original Employment Tribunal had erred in law in concluding that Mrs Readman had unreasonably refused an offer of alternative employment for her own reasons, when it had correctly concluded that the offer was an offer of suitable employment which a reasonable employee could have accepted.

The Claimant in the case had been employed continuously since 1976 but had ceased to work in a hospital setting in 1985 up to the reorganisation that eventually led to her dismissal.

She had expressed to her employers during the redundancy process the possibility that she might emigrate to Canada but had properly applied for all of the job opportunities that were her preferred options prior to making a final decision. Eventually, an offer of alternative employment was put to her to work as a Matron in a hospital setting, with the full amount of development and other support being put into place for her. Mrs Readman rejected this offer and her considerable redundancy payment was withheld as a result.

The original Employment Tribunal concluded that

“We find that the claimant rejected this offer without any considered attempt to explore what aspects, if any, of her current job would be lost, and what other duties might be required. The refusal was against her desire to emigrate and her desire if possible to be able to take advantage of her redundancy rights and benefits. For these reasons we find that the claimant unreasonably refused this offer of suitable alternative employment.”

The Employment Appeal Tribunal reversed this decision and ordered that the full redundancy payment due be paid to Mrs Readman. They concluded that

“Her main objection was the fact that she had taken a considered decision in 1985 to move away from working and delivering nursing in a hospital setting, in favour of delivering her nursing skills in a community setting. …… The Tribunal was of the view that a reasonable employee would have accepted the employer’s offer, but in our judgment this Tribunal wholly failed to grapple with the question of whether it was unreasonable for this employee, for the reasons which she gave, to accept that offer. It failed entirely to grapple with the question of whether the reason which she gave, as the fundamental reason for refusing it, was sound and justifiable or whether it was unreasonable for her to have taken that position.”

This case illustrates clearly that the decision on whether an offer of alternative employment is suitable or not is a very much a subjective test and it can be reasonable for one employee to reject the offer for their own reasons when some, if not all and any other employees to whom the same offer was put, would readily accept it.

Employers should therefore look closely at two questions in this situation. Firstly, is my offer to the employee one of suitable alternative employment? Secondly, is my employee’s refusal of that offer unreasonable? The inherent danger is that employers will say that they would have accepted the offer so it must be reasonable whereas the correct approach is to look at the individual reasons for any refusal and to evaluate those instead.

For all questions or advice in this area, please go to Chamber HR