What is suitable alternative employment if you are threatened with redundancy?

During the redundancy consultation process, the employer must offer the employee suitable alternative employment (if this exists) as a way to avoid their potential redundancy. Before the first consultation meeting, the employer should check the list of vacant roles.

The offer

All offers of suitable alternative employment need to be made before the end of the employee’s contract of employment.

Offers of suitable alternative employment don’t have to be made in writing. However, for evidential purposes, it is advised that they are.

The offer should set out the job and any areas of the role which differ from the employee’s current employment. If the employee is offered multiple roles, the differences between these should also be clearly distinguished.

For the offer to be deemed suitable alternative employment to avoid redundancy, the employee must start this new role within four weeks of their existing employment ending. If the terms of the new role differ from those the employee was initially told, this will not be suitable alternative employment and the employee’s original redundancy dismissal will stand.

Rejection

If the employee unreasonably refuses an offer of suitable alternative employment, the employer is under no obligation to provide them with a statutory redundancy payment. For this to occur, the employer needs to have offered the employee the role, not just invited them to apply for it.

Whether a rejection is “unreasonable” will depend on the suitability of the role to the employee. This is judged objectively on whether the nature of the role is suitable, but also subjectively as to whether the role is suitable for that individual employee depending on their circumstances. It is very risky to rely on a rejection of suitable alternative employment to withhold a statutory redundancy payment.

Acceptance

If an employee accepts an offer of suitable alternative employment, they are entitled to a trial period of four consecutive weeks to assess whether, in practice, the role is suitable for them.

While the employee is legally entitled to this, and so it will take effect automatically, it is good practice for the employer to remind them of this fact when offering suitable alternative employment.

The trial period can be extended for a further four weeks if the employer and employee deem this necessary. However, this extension must be granted in writing before the trial period commences.

If during the trial period the employee decides the employment is not suitable for them, they can choose to leave the role, and they will be treated as if they were dismissed by reason of redundancy on the date their old contract of employment ended.

If the trial period is successful, the employee will be treated as not dismissed by reason of redundancy and will continue in the new role, while maintaining their continuity of employment with the employer.

If the employee’s employment is terminated during their trial period by an employer, for a reason related to the differences of this new role in comparison to their old role, they will be taken to have been dismissed by reason of redundancy when their old contract of employment ended.

However, if the employee is terminated for a different reason (for example due to misconduct), they will be terminated at that date for that reason, and will not receive any redundancy payment.

*Tomorrow: redundancy entitlements. The first part of the series on the redundancy process can be found here.

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