Alternative employment — key legal duties

• an employer should give employees at risk of redundancy the opportunity to apply for suitable alternative work if available, including, where appropriate, vacancies in other companies within the same group;

• the obligation is more stringent in the case of employees on maternity, adoption or additional paternity leave, where the employer must offer any suitable available vacancy;

• the obligation is also more stringent in the case of disabled employees (see Chapter 4);

• employees must not discriminate in relation to offers of alternative employment;

• failing to offer suitable alternative work if available is likely to make a redundancy dismissal unfair (Groves and other v Pillings Printing Co EAT/845/99).

An employer should begin looking for alternative employment opportunities as soon as it realises that the role is at risk of redundancy, whether or not this fact has been communicated to the employee. The larger and better resourced the employer, the more that will be expected (Richardson v HSBC Bank PLC UKEAT/0499/10).

Responsibility for identifying possible alternative roles rests firmly with the employer as it holds all the knowledge. However, in practice, it is sensible for members to engage actively in the process, keeping a careful record.

The employer must keep looking for suitable alternative vacancies right up to the dismissal date. If an employer cuts short the consultation period, a tribunal will want to know what vacancies came up during the period in which the employer should have consulted had it acted fairly, and why the claimant was not a suitable candidate (King v Royal Bank of Canada Europe Limited [2011] UKEAT0333/10).

The employer has a relatively wide discretion to decide whether someone at risk of redundancy is “suitable” to be offered an available post (see also the discussion in chapter 3). For example: