It is a sign of the times that we are receiving so many enquiries about redundancy. One matter we are regularly asked about is suitable alternative employment. If you are going through a redundancy process and are looking for information about what is suitable alternative employment, read on.
Redundancy Overview
As a brief overview, where an employer is considering making redundancies, they must establish that:-
- redundancy is the real reason for the dismissal; and,
- they have acted reasonably, in all the circumstances of the case, in dismissing their employee for redundancy.
The reasonableness of the employer will be considered in the context of the procedures used to select the employee being made redundant and whether any vacant positions were available at the time of dismissal. Other blogs and pages on our website deal with consultation and selection procedures. This post deals with the particular issue of whether the employee being made redundant should have been offered suitable alternative employment.
Suitable Alternative Employment
Essentially, where an employee is at risk of redundancy, the employer is obliged to consider and offer any available suitable alternative post they may have which would avoid the employee’s redundancy. This can cause dispute in circumstances where employers want to make employees redundant, whilst at the same time actively recruiting to vacancies. There might well be an argument that the employees at risk are entitled to be offered that vacancy as suitable alternative employment.
What is suitable alternative employment will depend upon the nature of the available post and the qualification and skills of the employee at risk. Also, the obligation to offer suitable vacancies to an employee at risk of redundancy continues throughout the whole process, right up to the point when employment ends.
Unfortunately, employers sometimes forget their ongoing obligation, especially where the redundant employee has a long notice period. What may have initially been a fair decision to make an employee redundant, can later become an unfair dismissal due to the employer’s failure to meet their ongoing obligations during the employee’s notice period. If vacancies arise with your employer whilst you are serving your notice, you should be considered for those available positions as a means of avoiding your redundancy.
Also, where an employee has not served their notice but has been given a lump sum in lieu, this can also be relevant when considering the fairness of the redundancy. This is especially so if the decision to make a payment in lieu of notice was deliberate to avoid offering a vacancy.
My Client’s Story
I recently assisted a client who was made redundant. As with many employers currently, the company were restructuring and reducing staff numbers. My client had an administrative/office role with a national Estate Agency. She was the only employee with that type of role at a company branch office. She was selected for redundancy as she was told administration and office work for all the company’s branches was being centralised at the employer’s Head Office.
My client had experienced difficulties with the manager making the decision to terminate her employment. She suspected the previous problems were a factor in the redundancy decision. She was very open with the company and stated she would be happy to move to other roles within the branch. She commented during her redundancy consultation meeting that she was keen to move into other areas of estate agency work and would be happy to take on a trainee position. However, she was told there were no trainee posts at her branch or other branches locally.
Therefore, whilst she wasn’t particularly happy with the decision, she took in good faith the company’s explanation about the centralisation of administration and office work. She also accepted their comments to her that there were no vacant posts she could move to at her branch or in her local area.
She was not asked to work her notice, which would have been three months. Instead, her employment ended at the end of the redundancy consultation, and she was paid her redundancy entitlement and three months’ salary as a lump sum.
Again, my client was not happy about her redundancy but accepted the company’s explanations and reasons. She was therefore shocked when, a couple of months later, she saw a trainee position being offered at her old branch office. She immediately contacted her former employer and stated that she should have been offered that vacant position instead of being made redundant. In response, the company stated that they were under no obligation to offer the position to her as she was not an employee.
My client contacted me for a free enquiry. I explained that she had a likely claim for unfair dismissal (and possibly others). She met with me for a Fixed Fee Consultation to discuss her matter in more detail. For information about Fixed Fee Consultations, please visit our website at https://lincslaw.co.uk/fees/employees/
My client instructed me to begin the litigation process which I did by initiating ACAS Early Conciliation. More information about ACAS Early Conciliation is available on our website at https://lincslaw.co.uk/blog/acas-early-conciliation-the-first-step-in-bringing-an-employment-tribunal-claim/
In the event, my client’s matter did not get as far as submitting an Employment Tribunal claim. I engaged with ACAS and the company to explain in detail why my client had been unfairly dismissed. I also set out my client’s view that the company were aware of the likely future vacancy at her branch. Further, that they had deliberately truncated her redundancy consultation and notice period to avoid offering her that vacant position. After some negotiation, my client was offered a significant financial settlement which she accepted.
Can Lincs Law Employment Solicitors Help You?
If you are going through a redundancy process at work, please contact us on 01522 440512 for a free initial telephone enquiry with one of our specialist employment solicitors. Alternatively, for more information about redundancy, please visit our website at https://www.lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/redundancy
Sally Hubbard
Specialist Employment Solicitor
Lincs Law Employment Solicitors, Lincoln
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