No right to redundancy pay where the employee changes their mind about suitable alternative employment.
A Tribunal has held that an employee was not entitled to redundancy pay when she changed her mind about accepting a suitable alternative employment. However, her claim for unfair dismissal was upheld so she would receive her basic award.
In this case, Mrs Love worked at a farm shop which was closing. Her employer offered her a job at a nearby farm shop subject to a trial period, but she refused as she was a nervous driver and didn’t want to drive to the new farm. Her employer offered her reasonable mileage and confirmed she would not be expected to travel to work in the snow if it would be too risky. Mrs Love refused and her employer confirmed her redundancy. They told her she was not entitled to a redundancy payment as she’d unreasonably refused the offer of suitable alternative employment. Mrs Love subsequently changed her mind and asked for the trial period after all. However, her employer refused and did not pay her redundancy. She subsequently brought a claim for statutory redundancy pay and unfair dismissal.
The tribunal found that the offer was suitable and the refusal unreasonable. Therefore, she lost her right to a statutory redundancy payment. This was not resurrected when she changed her mind about the trial.
However, her unfair dismissal claim was upheld as it was not reasonable for her employer to refuse to allow Mrs Love to change her mind regarding the trial as the role was still available, she was a long serving employee, and her employer was previously keen for her to take the role.
Points to take away.
Assessing whether or not an offer of suitable alternative employment is unreasonably refused is a subjective viewed from the employee’s point of view. Here, the Tribunal accepted there was an unreasonable refusal. However, Mrs Love was successful in her unfair dismissal claim and would receive a basic award as part of her compensation (calculated in the same way as statutory redundancy pay). Therefore, employers should still be cautious when refusing to pay statutory redundancy pay where an alternative role is turned down.
If you need any support with a redundancy process you are implementing, get in touch with our team.
Mrs Love also brought a claim of unfair dismissal. This was upheld on the basis that it was not reasonable for her employer to refuse to allow Mrs Love to commence the trial period and to confirm her redundancy. At the time Mrs Love met with her employer, the alternative role was vacant, her employer had previously been keen for her to take up the role, she was a long-serving employee and she was at risk of redundancy in circumstances where she would not receive a redundancy payment.
If you have any questions on the impact of this information on your business, please do get in touch with the team.
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There is a link to the report below.
| Case: Love v M B Farm Produce Ltd ET/2304946/2022 (3 August 2023) (EJ Siddall). |