Not if the employer's motive, in this case, a desire to enforce a reasonable and necessary policy, is properly separable from conduct that could be a detriment, holds the EAT in Arriva London South Ltd v Nicolaou . Daniel Barnett’s Employment Law Bulletin reports: The Claimant, a bus driver, had declined to opt-out of the 48-hour week average limit, so the employer did not consider him for overtime, justifying its decision on the basis that it had a duty to ensure that it kept to its policy of preventing the Claimant exceeding a 48-hour average working week, in line with Regulation 4 (2) WTR 1998. The Claimant claimed a detriment under S45A ERA for asserting his right to opt-out. The EAT reviewed the authorities relating to causation in discrimination and whilstleblowing, and held that the necessary link between the Claimant's protected act and the withdrawal of overtime for a detriment was not made out, the reason why the employee was refused overtime being to enforce a policy. The EAT was fortified in its conclusion by the observation that "...It would be a strange result if this employer were to be condemned for adopting a reasonable policy designed to ensure that its employees who exercised their right not to opt out of the 48 hour week maintained that right...". Can an employee act reasonably in refusing an offer of suitable alternative employment where the Employment Tribunal correctly concludes that a reasonable employee would have accepted the employer's offer? Yes, says the EAT in Readman v Devon Primary Care Trust . Daniel Barnett’s Employment Law Bulletin reports: Mrs Readman, a nurse, was placed at risk of redundancy and offered three alternative posts by her employer. One of the posts, a Hospital Matron position, was correctly found by the employment tribunal to amount to suitable alternative employment under s 141(3) of the ERA 1996. Mrs Readman refused this post on the grounds that, having worked in community nursing since 1985, she had no desire to return to a hospital setting. In the circumstances, she was denied a redundancy payment by her employer, relying on s 141 of the ERA. The Employment Tribunal similarly refused Mrs Readman a redundancy payment on the grounds that her refusal had been unreasonable. In reaching this conclusion, the tribunal asked itself, in effect, whether a reasonable employee would have accepted the employer's offer and concluded that they would have done. Overturning the decision on appeal, the EAT held that the tribunal had fallen into error by applying a wholly objective test to the question of reasonableness. The proper question for a tribunal, when considering whether a refusal of suitable alternative employment is unreasonable, is whether the employee in question acted reasonably in refusing the offer. This will involve a consideration of whether the reason, given by the individual, constituted a sound and justifiable reason for turning down the offer. REDUNDANCY AND SUITABLE ALTERNATIVE EMPLOYMENT 20 January 2012
RECRUITMENT AGENCY LOSES TRIBUNAL OVER SALARY SACRIFICE SCHEME
29 JANUARY 2012
CIPP Policy News Journal
09/10/2012, Page 62 of 234
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