Labour & European Law Review Weekly Issue 259 08 March 2012
Employees can be denied a statutory redundancy payment if they unreasonably refuse an offer of suitable, alternative employment. In Readman v Devon Primary Care Trust, the Employment Appeal Tribunal (EAT) said that the Tribunal should have asked whether it was unreasonable for Mrs Readman to refuse the offer, not whether a reasonable employee would have done so.
Mrs Readman, a community modern matron in the Teignmouth and Dawlish locality, was told in November 2007 that she was at risk of redundancy following a management reorganisation. She applied for one of the new leadership posts, but was unsuccessful.
The Trust offered her another post in July 2008 as the modern matron at Teignmouth hospital. This post involved no loss of status or pay, but was hospital rather than community based. She refused the offer, saying she did had not worked in a hospital since 1985 and that her experience and qualifications were in community nursing.
It then offered her two posts, both at a lower grade. In November 2008, she started a four-week statutory trial period in one of them, but resigned and claimed a redundancy payment. The Trust said that, as she had unreasonably refused the offer of suitable alternative employment as a matron, she was not eligible.
And the Tribunal agreed. It accepted that the two posts she had been offered at a lower grade were not suitable, but the same could not be said of the post of matron. The only difference between it and her old job was that she would now be a matron in a hospital setting, but one which was a relatively small community hospital, with only 12 beds.
It criticised her for rejecting the job “almost out of hand” without exploring what it might entail, what duties might be transferable or what training and other mentoring or support might be available. It was apparent from the Tribunal judgement that it thought a reasonable employee would have accepted the offer.
It also thought it was significant that Mrs Readman wanted to be made redundant so that she could emigrate to Canada (which she subsequently did).
On appeal, the EAT said that the Tribunal had applied the wrong tests.
Although it was required by law to make an objective assessment of the offer of alternative employment and whether it was suitable, it also had to ask whether the offer suited that individual person’s skills, aptitudes and experiences. And it had to consider whether it was unreasonable for Mrs Readman to refuse the offer, not whether a reasonable employee would have done so.
The EAT said that, whatever the circumstances of the offer and whether or not she could easily re-familiarise herself with certain aspects of hospital life, the Tribunal should therefore have considered “whether her basic decision - that she had no desire to work again in a hospital setting, where she had not done so for more than 23 years of her career - constituted a sound and justifiable reason for turning down the offer”.
In this case, said the EAT, it was clear that the core reason for Mrs Readman turning down the offer was that she had no desire to work in a hospital, having worked in the community since 1985. And although she was influenced by the fact that she wanted to go to Canada and might prefer to have the redundancy money, that was not the main reason for her refusal.
The EAT therefore allowed the appeal and substituted a finding that Mrs Readman was entitled to receive a redundancy payment.
This is a helpful EAT decision for those who wish to take their redundancy payment rather than accept a job which, though equal in many respects, is for some significant reason personal to the employee, unsuitable in nature. In a redundancy redeployment situation this judgement adds weight to union representations on behalf of a member that employee choice, and not employer convenience, is of paramount importance in assessing whether an apparently suitable job can reasonably be refused.