In this month’s 'How do I Handle It' Rachel Richardson, Director with Tughans Solicitors considers an Employer’s obligation to offer suitable alternative work to an employee at risk of redundancy and discuss the factors that determine what is meant by ‘suitable’.  This month’s problem concerns:

I am an HR Manager and am in the middle of a redundancy consultation process with employees. I am at the stage of considering whether there is any suitable alternative employment which I can offer to the employees who are at risk of redundancy.  Do I have to offer them the same roles that they are currently employed in, or is there a degree of flexibility – what is considered to be “suitable”?

I am assuming that you will be making the employees aware that if any new suitable alternative employment terms are offered, then that offer would be subject to the statutory four-week trial period.

As you no doubt will be aware, if an employee unreasonably refuses an offer of suitable alternative employment, then they will lose their right to a statutory redundancy payment and will be treated as dismissed.

There are several factors that should be carefully considered, when looking at whether an offer of alternative employment is “suitable” or not, these include:

1. Hours of Work

Are the new hours of work different to those worked previously by the employee? You should consider whether they will lose, for example, entitlement to overtime. Also, consider if the employee worked shifts previously, will they work on a shift basis in the new employment, or will their working hours be structured in a different way?

2. Location

Is the new employment located at the same place of work, or will the employee have to make a longer commute?

3. Pay and benefits

Will the pay in the new employment be broadly similar, or will the employee have to take a large pay cut?  If so, it is likely that that would make the offer unsuitable.

4. Status

Is there is a loss of status or demotion for the employee in the new employment?  If so, it is likely that this would make the offer unsuitable.

5. Skills

Consider the skills that the employee holds and ensure that the new job offered makes use of those skills, otherwise it is likely that the new employment will be deemed unsuitable.

6. Length of contract in the new employment

If the new employment is for a very short period e.g. a few months, it may be reasonable for the employee to refuse the offer of that employment.

Remember that an employee can refuse the offer of suitable alternative employment and should they subsequently issue Tribunal proceedings for a redundancy payment and unfair dismissal, then the Tribunal would consider whether the employee was being reasonable in refusing the offer.  It will be up to you, the employer, in defending the proceedings, to demonstrate that their refusal of the alternative employment was unreasonable. You will need to show that you considered the employee’s particular circumstances, when looking at what you could offer them as a suitable alternative.