The claimants were employed by the respondent NHS Trust as Heads of Human Resources.  The issue initially arose in 2016 when the respondent participated in a joint working arrangement with two other NHS Trusts.  This led to a restructuring of the HR department across the trusts. The appellants sought a re-evaluation of their roles considering that those from other Trusts were at a higher grade.  This meant they were moved from Band 8a to Band 8b. In terms of the restructuring, the claimants’ roles were being removed and were being replaced by three new Head of Human Resources posts at a higher band of 8d. The claimants were told that their employment would come to an end in December 2017, and they would not be paid redundancy payment if they unreasonably refused offers of suitable alternative employment.

The claimants were offered senior HR roles at band 8b.   The claimants, however, refused the offer on the basis that they would have less autonomy and status.  They also outlined that there would be a reduction in job security, and they had a lack of confidence in the leadership team in HR. The respondents sought to assuage those concerns by discussing potential amendments to the job description, but those amendments were not sent to the claimants prior to their termination date. The respondent operated on the basis that the refusal of these roles was unreasonable and informed them that they would not be entitled to any redundancy payment. At first instance, the Tribunal agreed with the respondents.

The claimants appealed to the EAT arguing that the Tribunal had failed to properly examine whether the offer was proper alternative employment. The EAT held that where alternative employment has arisen, there must be a careful comparison between the two roles. It is the role of the Tribunal to identify the differences and determine if those differences matter.  The ET, in this case, outlined that there was no difference when it came to status. The EAT had difficulties with this considering that in the new role the claimants would be allocated or directed work, yet under the old role they had more autonomy. Additionally, the Tribunal did not explore whether there would be any difference given that the new role would be over three NHS Trusts, whereas the former role was only in relation to one. As a result, it held that the ET had failed to address some fundamental questions that had to be explored. The case was remitted back to the Tribunal for those questions to be explored to determine if the refusal of the alternative employment was indeed unreasonable.

Practical Lessons

The EAT has given some sage guidance on the steps the Tribunal needs to take when it comes to refusing alternative employment in a redundancy situation. The first step is to outline all the differences between the old role and the new role. This should then allow for a comparison between the two roles and the effect it would have on the individual moving from one role to the other. It is only after exploring all the differences that the Tribunal can then decide whether the refusal was reasonable or not.  This provides some good guidance for redundancy cases that may arise in the future.

https://assets.publishing.service.gov.uk/media/610bbce6e90e0706c3dbe6f6/Mrs_Catriona_Stevenson_and_Others_v_Mid_Essex_Hospital_Services_NHS_Trust_EA-2019-000834-RN.pdf