REWARD INSIGHT
Redundancy alternative, dismissal for poor attitude, worker status
Nicola Mullineux, senior employment specialist for Peninsula, reviews decisions in three cases
Dunne v Colin & Avril Ltd t/a Card Outlet The Employment Appeal Tribunal (EAT) has examined when a denial of a suitable alternative to employment in a redundancy situation is reasonable. The employee worked a 24-hour working week as a bookkeeper. She began her role in June 2003, but transferred to the employer’s company in June 2015. Following the transfer, the employee entered into discussions about her position with her new employer. Originally, they offered her a contract of a sixteen-hour working week but she did not find this financially acceptable and turned it down. She was then offered a contract for a 24-hour week which would be made up of sixteen hours bookkeeping and eight hours of warehouse work. She declined the contract on the basis the warehousing work was inconsistent with her bookkeeping skills and experience and it would not be cost-effective for the business because warehouse workers were usually paid lower
pay than she would receive. The employee was dismissed in February 2016 and made a claim for a redundancy payment and unfair dismissal. The Employment Tribunal (ET) found that the reason why the claimant worked a three-day week was for health reasons; she had leukaemia and was unable to work more than 24 hours a week. Also, due to her illness, she would not be able to tolerate the cold environment of the warehouse and this was her reason for turning down the second contract. The ET decided that there was a redundancy situation; however, the claimant had unreasonably refused an offer of suitable alternative employment. The offer was considered a suitable alternative because it meant the claimant remained substantially office-based and her pay would remain the same. On that basis, the ET decided her refusal to accept the offer was unreasonable and she would not be entitled to a redundancy payment. The claimant appealed.
The EAT allowed the appeal. They found that the ET had not asked the two separate questions required by the legislation; firstly, on an objective basis, was the job offer one of suitable alternative employment; and, secondly, on a subjective basis, was the employee’s refusal of the offer of suitable alternative employment unreasonable? The EAT reiterated that the answer to the second question, whether or not the refusal is reasonable, depends on the employee’s subjective reasons for refusing the offer and the onus lies on the employer to show both suitability and unreasonable refusal. This case, and previous decisions, show how difficult it is for employers to show that the refusal was unreasonable as it is a subjective question. It also did not matter that the employee relied on a different reason at tribunal, her health, than the reason earlier mentioned to the employer; this did not mean it should have been disregarded when considering the unreasonableness question. Adeshina v St George’s University Hospitals NHS Foundation Trust & Ors The EAT has reviewed whether a poor attitude to organisational change can
...onus lies on the employer to show both suitability and unreasonable refusal
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| Professional in Payroll, Pensions and Reward | June 2017 | Issue 31
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