Suitable Alternative Employment Following Department Restructure
26 January 2017
If you have been made redundant, your employer may seek to offer an alternative role rather than make a redundancy payment. This article explores whether you have to accept this role and the points you should consider before rejecting an offer.
For an alternative role to be considered in lieu of a redundancy payment, it must be offered before the end of employment and start four weeks or less after the previous role ended. It must also be considered suitable.
If you were to accept the role you will carry on with the employer and have no entitlement for a statutory redundancy payment.
Both you and your employer are given an opportunity to try out the new arrangement during a statutory trial period.
The statutory trial period arises wherever there is any difference in the new employment offered, not where you are re-engaged under the same terms as their old contract.
The statutory trial period will last for four weeks after you start work under the new arrangement, but a longer period may be agreed between you and your employer if you require re-training for the new role. An agreement for a longer period must be made in writing before the new arrangement starts, specify the date on which the period ends, and what terms and conditions will apply after the end of the period.
If you reject the role during the trial period, you will be treated as having been dismissed and you must show you had been reasonable in refusing the alternative role. Whether the role is suitable and whether your refusal is unreasonable will be considered by the Employment Tribunal.
Suitability of the Role
Reasonableness of the refusal is looked at from the employee's point of view at the time of refusing. It is likely the Employment Tribunal will consider factors concerning the role itself such as the level of responsibility, the salary, career prospects and job location.
If the Employment Tribunal finds that you had unreasonably refused the suitable alternative employment, a statutory redundancy payment will not be awarded. However, a claim for dismissal on the grounds of redundancy may still be considered.
Reasonableness of Rejection
When considering whether your rejection of a role was reasonable, the Employment Tribunal will take into account your specific personal circumstances. Employees have a wide scope to the objections that they can make to the offer. Employers will have to give consideration to all reasons made for objecting the offer and consider whether or not they are sound and justifiable.
The matters of suitability and reasonableness of rejection are of course closely linked. Generally speaking the more a role is considered suitable the harder it will be for you to show your rejection of such was reasonable.
If an Employment Tribunal found the role to be suitable and you had therefore unreasonably rejected that role, you will not be entitled to a redundancy payment. However in contrast, if the role was found to be unsuitable and you had not been unreasonable in rejecting it, you would be entitled to a statutory redundancy payment. Depending on the way the redundancy was handled, a claim for unfair dismissal may also be appropriate against your employer.