It is fundamental to the fairness of any redundancy dismissal that an employer considers whether there is any suitable alternative employment within its organisation.
Introduction
If you are at risk of redundancy your employer should make you aware of any vacancies. If there is more than one potentially redundant employee, your employer will need to consider how they choose which employees to make an offer of alternative employment to.
To What Extent Should My Employer Search?
Your employer should make a reasonable attempt to find alternative employment before dismissing you for redundancy. If they do not do so, an employment tribunal can take this into account when assessing the fairness of your dismissal. However your employer is not required to make every possible effort, but to make reasonable efforts. They should take proactive steps to assist you which may mean going further than simply telling you to apply for jobs on your employer’s website. Your employer should generally provide you with sufficient information about any vacancies so that you are able to take an informed view as to whether a particular position is suitable for you, including the level of pay associated with any particular position.
The extent of your employer’s duty to look for alternative employment may depend on the size of the organisation and their administrative resources. They might, for example, be able to inform hiring managers that you are at risk of redundancy. They might also consider a different type of role for you, including roles that may be more senior or even more junior. If you are not confident about your prospects of obtaining work elsewhere you may be willing to consider a role that might involve reduced status or salary. You should tell your employer if you are willing to consider a more junior role.
If your employer is part of a large group of companies, they might look at the whole group for vacancies but it will not necessarily be unreasonable if they fail to do this. It will depend on what is reasonable in the circumstances including the degree of control which one company has over another within the group.
Your employer might even be willing to consider the possibility of you working part time or even as a self-employed contractor as an alternative to redundancy. Your employer is not, however, obliged to create a job for you where none already exists.
What Should Be The Duration Of The Search?
Even if it appears that there is no alternative employment on the date on which the notice of termination is given to you, your employer should continue to search for possible alternative employment until the date on which your dismissal takes effect.
Your employer is not required to delay termination of your employment once notice has been served just to determine your application for alternative employment. If, for example, you apply for a vacancy very close to your termination date and there is not enough time for the recruitment process to be completed before your employment ends, your dismissal will normally still take effect but your employer should continue to process your application. In these circumstances you will remain entitled to a statutory redundancy payment in the normal way (assuming you have sufficient length of service). This is in contrast to where an offer of suitable alternative employment is made before the contract is terminated. That said, if you are subsequently re-employed then the fact that you received the statutory redundancy payment will sever continuity in relation to future statutory redundancy pay claims. In light of this your employer may wish to agree an extension to the notice period with you during which your application is processed to ensure that any offer of suitable alternative employment is made before your employment terminates.
How Are Vacancies Allocated?
Certain potentially redundant employees have an automatic right to be offered any suitable vacancies:
- If you are on maternity, adoption or shared parental leave.
- If you are in the protected period of pregnancy and have notified your employer of your pregnancy.
- If you have recently returned from a period of maternity, adoption or shared parental leave for an additional protected period.
- If you are on a period of neonatal care leave or within an additional protected period after you return to work from neonatal care leave.
The duty arises when your employer becomes aware that your role is redundant or potentially redundant.
Otherwise, your employer should look to limit applications to potentially redundant employees and make appointments from that pool of candidates where possible.
Your employer will be allowed a degree of subjectivity in deciding any recruitment process and the outcomes in relation to alternative roles. However, they must still act reasonably. In theory, your employer could still interview you for a suitable alternative role even where you are the only candidate for the role. If you are not offered the role then you may have an unfair dismissal claim (subject to you having at least two years’ service).
In some cases it might be reasonable for your employer not to offer you a vacant job if there are reasons beyond its control, for example, if a client is funding the role and that client expresses a preference for a particular employee.
Are Alternative Roles Subject to Trial Periods?
If you accept an offer of alternative employment, it might be subject to a statutory trial period. This occurs where alternative employment is being offered on different terms. A statutory four-week trial period will apply so that both you and your employer can assess the suitability of the alternative employment for you. If the trial period is successful (meaning that your employment continues) then the ending of the original contract will not be a dismissal for statutory redundancy pay purposes. If the trial is unsuccessful, you will be regarded as dismissed at the date when the original contract ended and entitled to your statutory redundancy payment.
Lincs Law Employment Solicitors Can Help You
If you are going through a redundancy process and are unsure about your rights relating to suitable alternative employment or you have questions or concerns about any aspect of the redundancy process and would like advice on your own situation, please contact us for a free enquiry on 01522 440512 or via the web chat or contact form on our website at www.lincslaw.co.uk.
Kathryn Bolton
Associate
Specialist Employment Solicitor
Lincs Law Employment Solicitors
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