In a redundancy situation an affected employee may be offered suitable alternative employment by their employer. Then the question will become whether the employee will accept that offer or will leave the employment because of redundancy, which will usually depend on the alternative role’s suitability.
Section 138(2) – (3) of the Employment Rights Act 1996 sets out the legal position in relation to the trial period an employee must be allowed to spend in the alternative role, which is four weeks long. The purpose of this time is for both the employer and employee to evaluate the role’s suitability.
Both parties can decide on the role’s suitability. This will depend on:
- The employee’s skills, aptitude and experience, and whether they meet the requirements of the job on offer.
- How the terms of the alternative role (e.g. its status, job content/tasks, pay and fringe benefits, hours and location) compare with the employee’s previous role.
Stevenson v Mid Essex Hospital Services NHS Trust is authority for the proposition that the parties should focus on the practical differences between the roles.
An unreasonable refusal of suitable alternative employment by an employee may have the effect that the employee will leave the employment without a redundancy payment. In considering whether such a refusal is reasonable these factors should be considered:
- The circumstances in which the offer was made.
- The duration of the alternative employment.
- The employee’s personal situation (with reference to the factors about suitability above).
Redundancy during pregnancy and family-related leave
An employee on such leave will likely be entitled to be offered any suitable alternative role, without other consideration. The protected periods are explained in our previous article: A wave of new family friendly legislation | Didlaw.
This blog was written by Ben Lindsay, Solicitor at didlaw.
