Case of the week: Employee has right to refuse ‘unsuitable’ role

Commission for Healthcare Audit and Inspection v Ward

FACTS The claimant, Ms S Ward, had been employed by the Commission for Healthcare Audit and Inspection (CHAS) and its predecessor since February 2001. Following a second restructuring exercise in May 2006, the claimant was selected for redundancy.

The CHAS identified two potential alternative roles for the claimant, one of which was offered to her three times. However, she felt it was unsuitable due to its status, the job content in relation to her experience, her future job prospects and her job security.

On the third occasion that the claimant was offered the role, the claimant alleged that she had become disillusioned with the restructuring process not least because no-one from the commission appeared willing to talk to her about the role, and no-one informed her that the role was also being advertised externally.

The claimant refused the role and sought a statutory redundancy payment under s.141 of the Employment Rights Act 1996, which the commission refused, claiming she had unreasonably refused the role that had been offered.

DECISION The Employment Tribunal held that although the proposed new role was suitable “on balance” for the claimant, she had not acted unreasonably in her refusal of the offer taking into account her feelings of disillusionment and alienation and based on her perceptions at the time. She was, therefore, awarded a redundancy payment.

The commission appealed.

The Employment Appeal Tribunal (EAT) upheld the tribunal’s decision and held that it was entitled to consider the degree of suitability of the alternative role when deciding whether the employee’s refusal was reasonable. As such, in deciding whether or not the refusal was unreasonable, the tribunal could take into account that the new role was only “marginally”, as opposed to “plainly”, suitable for the claimant.

In reaching its decision, the EAT endorsed earlier case law that a claimant’s behaviour and conduct must be judged on the facts as they appeared to the claimant, or ought reasonably to have appeared, at the time that she had to make the decision about the new role.

It also upheld the principle that it is possible for an employee to reasonably refuse an objectively suitable offer on the ground of his personal perception of the role offered: the question of the reasonableness is a matter of fact for the Employment Tribunal, and it is for the employer to establish that the employee’s refusal is unreasonable.

IMPLICATIONS The question of whether an employee unreasonably refuses alternative employment is subjective and each individual case must be considered in the light of its particular circumstances. Employers should remember that an employee’s perception of a role may be reasonably affected by the manner in which the employer conducts the redundancy process and deals with and communicates with the employee.

Jane Garrett, associate, Addleshaw Goddard

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