A redundancy procedure is an incredibly stressful and anxious time for any employee. It is important that your employer follows the correct procedure when implementing a redundancy situation. This blog looks at one element of the redundancy procedure – suitable alternative employment.
What is a Redundancy Procedure?
A redundancy procedure will occur when your employer tells you that sadly your role is no longer available or necessary within the company. This can be an extremely worrying time for you and your family.
It is important that a correct, fair, and reasonable redundancy procedure is conducted.
If the employer has followed a correct, fair, and reasonable redundancy procedure, you should be able to answer all of the following questions:
- Has a genuine redundancy situation occurred?
- Has a period of genuine consultation taken place?
- Has a pool of ‘at-risk’ candidates been correctly identified?
- Has there been a fair assessment and selection from that pool?
- Has the employer considered suitable alternative vacancies?
This blog focuses on the final question, but for further information on all of these important redundancy steps, please see our blog: https://lincslaw.co.uk/blog/are-you-being-made-redundant-five-questions-to-ask/
Suitable Alternative Employment
This is an important step in the redundancy process and one that can often be overlooked.
Your employer has an obligation to try and avoid the need for your redundancy. This obligation remains throughout the consultation process, any required notice period and up to your termination date.
The obligation to try and avoid the need for your redundancy includes your employer looking at whether there are any other suitable alternative roles within the company which you can step into and fulfil.
You should be told of any potential vacancies within the company and be provided with the key information of any vacancies as part of your consultation process.
As someone “at risk” of redundancy, your employer should consider you for any vacant position which you could undertake, either immediately or with a reasonable amount of training. If there is one “at risk” employee and one vacant position, the suitable alternative role should be offered without any application or recruitment process. If there are fewer vacant positions than employees at risk, then some sort of process will be needed to choose which employees should be given the positions.
Can a Suitable Alternative Vacancy be Offered to an External Candidate?
If the suitable alternative vacancy is one that you can step into immediately, or a with reasonable amount of training then it should not be offered to external candidates.
As an at-risk of redundancy candidate, you have priority for any potential vacancies. Therefore, you should only be placed in a recruitment pool with other at-risk candidates who apply for this vacancy. You should not be placed in a pool with external candidates or with internal candidates who are not at-risk of losing their job for some reason.
If you consider that your employer has not correctly fulfilled their obligation to offer suitable alternative employment during your redundancy procedure, please take legal advice as you may have a claim for Unfair Dismissal.
How Do I Know If a Vacancy is Suitable?
The question of whether a vacancy is suitable will require an objective and subjective assessment.
It is important that your employer provides you with the details of any potential vacancy and allows you to assess whether the vacancy is ‘suitable’. It is incorrect for your employer to refuse to provide you with the details of certain vacancies because they deemed the vacancy is not ‘suitable’.
An objective and subjective assessment of the role will be very fact specific on the vacancy and you, as an at-risk candidate. It needs to be established whether this is genuinely a suitable alternative vacancy for you.
Some examples of objective questions which may be asked are:
- Are the hours of work the same or similar?
- Is the pay same or similar?
- Is the place of work the same, or has the location been changed?
Then, when it comes to a subjective assessment, your employer must look specifically at you as the at-risk candidate, and whether the alternative vacancy is suitable for you. For example:
- If you are working parents, changing the hours of work to outside school hours may be deemed as unsuitable.
- If the place of work has changed, do you have a vehicle to travel? Are there public transport options in your area?
- Does the new role consider any disabilities you have or reasonable adjustments you require?
If a suitable alternative role is offered to you, you can request a four-week trial period.
During the four-week trial period, you should be allowed to undertake this new role fully. At the end of this period, if you reasonably and genuinely believe that the role is not suitable, you can decline the role and will likely be made redundant at that stage.
Can I Refuse an Offer of Suitable Alternative Employment?
You can always refuse any alternative employment your employer has offered you during the redundancy procedure, but, if your refusal is unreasonable, you may forfeit the right to receive a statutory redundancy payment.
Your employer will only be able to refuse to pay you a statutory redundancy payment if the role you have been offered is objectively and subjectively a suitable alternative role and you unreasonably refuse this role.
The assessment as to whether a suitable alternative role is ‘suitable’ and whether your rejection of it was reasonable or unreasonable, will be very fact specific. Therefore, you should not automatically accept your employer’s position if they threaten to refuse to pay your statutory redundancy payment. You should always take legal advice in this situation.
Employment Tribunal Claims and Time Limits
If you have been redundant and consider that the redundancy procedure was not conducted properly, you may have a claim for Unfair Dismissal.
If you want to issue a claim of Unfair Dismissal, there are strict timescales which you must comply with. You must commence ACAS Early Conciliation within 3 months less one day from date of dismissal.
ACAS Early Conciliation is a mandatory process that all potential litigants must go through before they can bring a claim to the Employment Tribunal. The aim of ACAS is to try and resolve the dispute between you and your employer without the need for further claims to be brought in the Employment Tribunal. If you are unable to resolve your dispute through ACAS Early Conciliation you will then be able to proceed to the Employment Tribunal.
These timescales must be adhered to regardless of whether you have appealed your dismissal and are waiting for your appeal to be investigated.
Lincs Law Employment Solicitors Can Help You
If you have are going through a redundancy procedure and would like further assistance, please do not hesitate to contact us for a free, no obligation, initial phone call on 01522 440512. For more information on redundancy, please see our website: https://lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/redundancy/
Jasmine Stewart
Specialist Employment Solicitor
Lincs Law Employment Solicitors
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