If you are contemplating redundancies you must offer any suitable alternative employment that you have available to those at risk of redundancy. But what happens if the redundant employee refuses to accept the role that’s been offered to them?
Where an employee accrues two continuous years’ service, they are entitled to receive a statutory redundancy payment (SRP) from you if they are made redundant following a consultation period. Even if you know that no other jobs exist, you must always carry out a consultation or the dismissal would be automatically unfair and you would inevitably lose a Tribunal case.
Where an employee is made redundant, you must also offer them any suitable alternative employment that’s available in your business. If nothing exists, a job role does not have to be specially created for this purpose and the other job offered must be suitable to their skills and experience.
But what happens if you offer an employee what you believe is suitable alternative employment but they reject it. In this case Mrs Dunne (D), had been diagnosed with leukaemia and was employed as a bookkeeper working 24 hours a week. In 2015 her employment transferred under the Transfer of Undertakings legislation to Colin & Avril Ltd (C) when her previous employer went into liquidation.
D had over two years’ service when transferring to C. Following the transfer, consultation took place about D’s job role. She was initially offered a 16-hour contract but turned this down for financial reasons. She was then offered 24 hours a week made up of 16 hours’ bookkeeping and eight hours of other duties, which included working in the warehouse. D declined that job offer on the basis that it was inconsistent with her skills and experience and would not be cost effective for the business. Following this, D was dismissed; she claimed unfair dismissal and the right to receive a Statutory Redundancy Payment.
The tribunal found that: (1) a redundancy situation had arisen; (2) the second job offer was suitable alternative employment; and (3) D’s refusal to accept the alternative employment was unreasonable. This meant that her dismissal was fair and, as she had unreasonably refused the alternative employment, D was not entitled to receive to redundancy pay.
The reasonableness of the employee’s refusal is always subjective and depends solely on factors that are personal to them, i.e. the decision must be considered from their perspective, not yours. Factors to take into account when assessing reasonableness include the alternative role offered, e.g. does it match the employee’s skills and experience, is there increased travelling time, are the hours different?
If an employee refuses alternative employment, always ask them to put their full reasons in writing so there is no ambiguity later on.
If any client contemplates needing to make staff redundant for any reason you may need additional support. In this instance you can contact advo HR for advice before commencing any discussions with staff to help avoid claims for unfair dismissal.