Alternative work 




An employer should give employees at risk of redundancy the chance to apply for suitable alternative vacancies including, where appropriate, vacancies in other companies in the same group. The obligation is stricter for employees on maternity, adoption or shared parental leave. For these employees, employers must offer any suitable available vacancy. These stricter rules are explained on page 398. 




Failure to consider suitable alternative employment can make a redundancy dismissal unfair. An employer should start looking for alternative employment opportunities as soon as they realise the role is at risk. The larger and better resourced the employer, the more that is likely to be expected by a tribunal (Richardson v HSBC Bank plc [2010] UKEAT/0499/10). 




Cutting short the notice period of a redundant employee in breach of contract to avoid having to offer suitable redeployment opportunities can produce an unfair dismissal (Missirlis v Queen Mary University of London [2016] UKEAT/0038/15/LA). Where this is done to avoid reinstating a “difficult” employee, for example a trade union rep who has opposed the restructuring, this is also likely to result in trade union victimisation (see Chapter 5).



The legal responsibility for finding alternative roles rests firmly with the employer, as they have all the relevant knowledge. However, the more proactive the employee is in engaging with the job search process, the more sympathetic a tribunal is likely to be. Compensation can be significantly reduced where an employer persuades the tribunal that the employee would not have accepted a job even if it had been offered (see page 357: Compensatory award). 




The employer should keep looking for suitable alternative vacancies right up to the dismissal date (King v Royal Bank of Canada Europe Limited [2011] UKEAT/0333/10).



Offers of suitable alternative employment are covered by section 141, ERA 96. This states that any offer must be made before the old contract ends and must begin within four weeks of the date of the end of the original employment.




An employee who unreasonably refuses a suitable role that is the same as, or not substantially different from, their previous work can lose their redundancy pay. 




The issue of whether work is suitable is considered separately from the question whether an employee is reasonable in refusing it, although there may be some overlap. The more suitable the offer, the greater the scope for the employer to show that refusing to accept it is unreasonable. 




Whether work is suitable depends on objective, job-related factors such as the terms and conditions and the skills required, taking into account individual skills and experience. Work is normally considered unsuitable if it involves material changes in pay, skills and experience or status. 




The reasonableness of a refusal to take up an offer often depends on subjective factors personal to the employee. The test here is whether the employee had sound and justifiable personal reasons for refusing the offer, taking into account individual circumstances such as domestic arrangements, health and housing. For example:



The manner in which an offer is made can be relevant to the reasonableness of any refusal, especially where this has damaged the parties’ relationship (Commission for Healthcare Audit & Inspection v Ward UKEAT/0579/07/JOJ).




The employee should be consulted about alternative work and given enough information to be able to decide whether it is suitable. Failing to do this is likely to make a refusal reasonable (Fisher v Hoopoe Finance UKEAT/0043/05).




Where a member accepts a lower paid job to avoid redundancy, unions may be able to negotiate a period of pay protection preserving the old terms and conditions, known as “red-circling”. 




An offer by the employer of self-employed or freelance terms is not an offer of suitable alternative employment (F&G Cleaners Limited v Saddington [2012] UKEAT/140/11/JQT).