Knowledge

Your employer is making you redundant but has offered you another job – must you accept it?

Posted on Apr 20th, 2017 | Employment law

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 accept the redeployment?

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Redundancy

Redundancy is a ‘fair’ means of dismissal by your employer, so long as the procedures they follow and the circumstances are correct. A redundancy situation happens when there’s no more, or not enough, work for you and your colleagues (e.g. 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 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’s available and suitable and they must tell you of any vacancies at your company. If a suitable job is available, you won’t 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’s no suitable work available for you at that time.

Check out our article on Redundancy and Statutory Redundancy Pay

Redeployment

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’s reasonable for you to refuse a ‘suitable’ alternative role, you’ll receive a statutory redundancy payment. You won’t be due a redundancy payment if you unreasonably refuse a suitable alternative job offer.

Deciding if it’s reasonable for you to turn down an offer of alternative employment will depend on your specific circumstances, including:

  • The amount of time you’re given to consider the new job
  • Whether the role is temporary or not and the role’s status
  • The impact it’ll have on your personal situation (e.g. if it’s in a different location, the effect on your family life or health)

Your employer can’t force you to accept an offer of alternative employment. However, if you refuse such an offer unreasonably, you’ll 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 four weeks of it
  • The job that’s 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’ve 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’ve followed your company’s internal grievance process.

If an employer has alternative work available that’s suitable but doesn’t 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 three days as a bookkeeper. 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 bookkeeper, plus eight hours of other work that included some work in the company warehouse. Ms Dunne declined, reasoning it was inconsistent with her skills and experience and wouldn’t be cost effective (as she was paid more as a bookkeeper); she was then dismissed. At the tribunal it became clear, for the first time, that she couldn’t 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 wasn’t reasonable. The case went to EAT who weren’t happy with the ET’s approach, and the case has been sent back to Tribunal. The EAT said that the Tribunal should have asked if the employer had demonstrated that her refusal was unreasonable.

For details about redundancy during maternity leave, see details here.

Statutory Trial periods

If your employer offers you a new job that’s a reasonable alternative to your old job, but where there are some differences to the old position and its terms and conditions, you’re entitled to a four-week statutory trial period in the new job.

  • If, during the four week trial period (or at the end of the four weeks), you don’t 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’s not considered a suitable alternative due to the differences between the old and new contracts – you’ll be classed as being dismissed by redundancy and still qualify for a redundancy payment
  • If at the end of the four 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’re seen to be ‘unreasonably’ terminating the contract, you’ll lose the right to a redundancy payment
  • If you stay in the new job after these four weeks, you’ll be considered to have accepted the new job (assuming you’ve not said differently) and will forfeit your redundancy payment
  • It’s possible to start a new four week trial period in another alternative job if the first new job/trial period is unsuitable
  • The four 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 – 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.

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Written by Lesley Furber

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