In Stevenson and ors v Mid Essex Hospital Services NHS Trust, the Employment Appeal Tribunal (EAT) held that when deciding whether it was reasonable for an employee to reject an offer of alternative employment, tribunals must carry out a careful comparison of the new job, compared with the employee’s former job.
The Mid Essex Trust, which had operated a joint working arrangement with two other NHS Trusts from May 2016, employed each of the three claimants as Head of Human Resources (HHR).
Following a restructuring exercise in 2017 to integrate the HR function across the trusts, the three HHR roles were removed. The claimants were all offered alternative employment in the new role of Senior HR Lead at the same band level. They refused the offer, however, citing significantly reduced levels of autonomy and status, lack of confidence about job security in the new posts and a lack of confidence in the leadership of the HR team.
In meetings with the claimants, the Chief HR Director discussed changes to the job description for the new roles in order to address these concerns. Although she made the relevant amendments, she failed to send them to the claimants before they were told in November 2017 that they had unreasonably refused offers of suitable alternative employment and that they would not therefore be entitled to redundancy payments.
The tribunal found that the grade, pay, location and hours of the new roles were the same as those of the claimants’ previous roles. It also found that their concerns about perceived reduced autonomy and status had been addressed by the Chief HR Director who had agreed to make changes. Their attitude, on the other hand, had been “inflexible and uncooperative” and indicative of a “closed mind”. It concluded that the new role of Senior HR Lead did not represent a reduced status and therefore constituted suitable alternative work.
The claimants appealed arguing that the tribunal had failed to properly consider the degree of autonomy and responsibility which they would have in their new role, as compared with their old role; the change of reporting line; the fact that the new jobs had not been evaluated by the NHS Job Evaluation Process; and their lack of faith in the Chief HR Director to whom they would report.
Allowing the appeal, the EAT noted that in a case where the issue is the suitability of alternative employment, tribunals must carry out a careful comparison of the new job with the employee’s former job. This involves identifying what, if any differences there are, deciding whether those differences matter and explaining why.
Although the tribunal correctly stated the legal test and analysed the facts in this case, it failed to consider the practical effect of certain differences between the claimants’ old roles and the allegedly suitable alternative roles.
For instance, it had not considered what difference it would make to the claimants that they would perform some functions only as “allocated” or “directed”, whereas previously they had autonomy over them. In addition, it had not considered the significance of certain duties which were part of the old roles but not of the alternative roles. Nor had it examined the practical difference involved in working for a group of three NHS Trusts rather than for one.
The EAT therefore remitted the questions of the suitability of the alternative employment and the reasonableness of the refusal to the same tribunal for reconsideration.