Your job is at risk of redundancy, and your employer has offered you redeployment to another job in the same company. Are you obliged to take it?
Redundancy is a ‘fair’ means of dismissal by your employer if you are an employee and the procedures they follow and the circumstances are correct. A redundancy situation happens when there is no more, or not enough, work for you and your colleagues (for example if your employer closes or relocates the business, or now needs fewer workers). Your employer needs to take the following steps to ensure the redundancy is ‘fair’:
- Employees need to be informed of proposed redundancies by undertaking Consultation with the ‘affected employees’ (or their representatives) with a view to ‘reaching agreement,’ which means they should consider alternative ideas to redundancy to and explain their decisions to you.
- Your employer must select those who are at risk of redundancy in a fair way.
- They must consider offering you any alternative work that is available and suitable and they must tell you of any vacancies at your company. If a suitable job is available you will not be entitled to a redundancy payment (see below).
- They must pay you your Statutory Redundancy Pay entitlement (if you have two years continuous service) if there is no suitable work available for you at that time.
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Employers need to consider the following factors when deciding if an alternative role will be ‘suitable’ to replace your redundant job:
- Will you have the right skills and experience for the new role?
- Are the terms of the alternative job similar – e.g. status, place of work, job duties, pay, hours of work, responsibility.
If it is reasonable for you to refuse a ‘suitable’ alternative role you will receive a statutory redundancy payment. You will not be due a redundancy payment if you unreasonably refuse a suitable alternative job offer.
To decide if it is reasonable for you to turn down an offer of alternative employment will depend on your specific circumstances including:
- The amount of time you are given to consider the new job
- Whether the role is temporary or not and the role’s status
- The impact it will have on your personal situation (if it is at a different location for example, the affect on your family life and your health)
Your employer cannot force you to accept an offer of alternative employment, however if you refuse such an offer unreasonably your will forfeit your right to statutory redundancy payment as long as:
- The offer of the alternative employment was made before the end of the previous employment and you were given details of the new job
- The new job starts on the termination of the old job or within 4 weeks of it
- The job that is offered has the same terms as the original contract, or if they differ the job is still seen as suitable alternative employment.
The onus is on the employer to show both your suitability for the job and that you have unreasonably refused the job. If your Employer believes the alternative job is suitable but you disagree, you may be able to claim for statutory redundancy pay and unfair dismissal at an Employment Tribunal after you have followed your companies internal grievance process.
If an Employer has alternative work available that is suitable but does not offer this to the redundancy employee the redundancy dismissal of the employee may be an unfair dismissal.
In Dunne v Colin & Avril Ltd 2017, Ms Dunne had leukaemia and worked 24 hours per week over 3 days as a book-keeper. Her employment transferred to a new business (same owner) and initially she was offered 16 hours per week which she declined for financial reasons. She was then offered 24 hours per week involving 16 hours per week as book-keeper plus 8 hours of other work that included some work in the company warehouse. Ms Dunne declined this, saying it was inconsistent with her skills and experience and would not be cost-effective (as she was paid more as a book-keeper) and was dismissed. At the tribunal it became clear, for the first time, that she could not work in the warehouse because of the cold environment. The Tribunal found her dismissal for redundancy was fair as the second offer was suitable (substantially office based and the same pay) and her refusal of it was not reasonable. The case went to EAT who were not happy with the ET’s approach and the case has been sent back to Tribunal to consider if the second offer was ‘suitable’ and if her refusal of the job was reasonable or not. The EAT said that the Tribunal should have asked if the employer had demonstrated that her refusal was unreasonable.
Statutory Trial periods
If your employer offers you a new job that is a reasonable alternative to your old job, but where there are some differences to the old position and it’s terms and conditions, you are entitled to a 4 week statutory trial period in the new job.
- During the 4 weeks trial period (or at the end of the 4 weeks) you do not want to stay in the new job and either you or your employer terminates the new contract or gives notice to terminate the contract (because it is not considered a suitable alternative due to the differences between the old and new contracts) you will be classed as being dismissed by redundancy and still qualify for a redundancy payment.
- If at the end of the 4 weeks you need more time for re-training the period may be extended (as long as this was agreed at the outset).
- If the work is suitable and you are seen as ‘unreasonably’ terminating the contract you will lose the right to a redundancy payment.
- If you stay in the new job after these 4 weeks you will be considered to have accepted the new job, if you don’t say differently, and will forfeit your redundancy payment.
- It is possible to start a new 4 week trial period in another alternative job if the first new job/trial period is unsuitable.
- The 4 week trial period should generally start immediately after your previous job has ended.
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to us at The HR Kiosk (click here) – a Human Resources Consultancy for small businesses – you can retain us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.