19/11/2009
Two recent unanimous decisions in the Employment Tribunal have seen Bevan Brittan successfully defending claims for redundancy payments made against two different South West NHS Trusts. In both cases, the Tribunals dismissed the claims for redundancy payments, concluding that both individuals had unreasonably refused offers of suitable alternative employment. Mike Smith explains.
Following the announcements of redundancies, a considerable level of correspondence and meetings ensued with regard to other potential employment opportunities for the Claimants. Both Respondents soon came to form similar impressions that the Claimants had become more interested in seeing their redundancies processed and claiming the benefits arising from this course of action, rather than remaining in suitable alternative employment. One claimant was keen to take early retirement, whilst the other had openly expressed their aspiration to emigrate.
In reaching their conclusions, both Tribunals took account of the fact that the Claimants did not wish to be redeployed and therefore were extremely reluctant to consider alternative employment. It was held that this approach underlay their refusal of the alternatives offered.
It is important to note that the Tribunal did not expect the Respondents to have found roles which were exactly alike to those that were being carried out by the Claimants prior to restructuring. One judgment referred to the case of Laing v Thistle Hotels where it was stated that there should be some broad equivalence between the new and old job.
The Tribunals acknowledged that the Trusts had specifically put forward roles that took account of the personal circumstances and offset the concerns of the Claimants. The judgments highlight to employers the importance of ensuring that suggested alternative employment is specifically targeted at the individual employees.
Where significant changes were part of an offered role the Respondents had ensured that they had taken steps to mitigate the impact of this adjustment on the Claimant, such as:
- flexible working hours;
- provision of transport;
- payment of travel expenses; and
- job relocation.
Importantly the Panels were also unanimous in concluding that the Claimants had unreasonably refused the suitable alternative employment offered to them. The judgments make it clear that an employee is expected to explore the roles offered to them, considering such things as:
- what the job specification entails;
- what duties/skills might be transferable; and
- what training or other support may be required.
What does this mean for me?
Where employees do not participate in the process and employers can show that employees have not made a real attempt to explore the options, for example, if they find fault with each of the options put before them, employers may be in a position to show the employee’s conduct has been unreasonable.
These judgments also make it clear that an employer need only put forward one offer of suitable employment to successfully defend a claim. In both cases the Trusts had proposed roles which were, in fact, dismissed by the Tribunal, yet this proved immaterial to the overall outcome, as other offers were made that were deemed suitable and they were unreasonably rejected by the Claimants.
