Legal Q&A: Redundancy and redeployment – what is a suitable alternative role?

Redundancy and redeployment - finding an alternative role

In an ever-changing world, employers are constantly under pressure to restructure and review headcount. Departmental reshuffles and changes in job duties are often used to improve the efficiency of teams and these may lead to reductions in headcount.

When job roles are revised, employers have to consider whether or not the affected employees have to be offered redundancy as an alternative to accepting the new role. Employees will lose their right to statutory redundancy pay if they unreasonably refuse a suitable alternative job offer. Solicitor Hayley Johnson looks at when a new role will be seen as a “suitable alternative”.

What makes an alternative role “suitable”?

When considering whether or not an alternative role is suitable, employers should consider:

  • the employee’s skills and experience (ie do they have the right skills and experience for the new role?); and
  • the terms of the alternative job including: status, place of work, job duties, pay, hours and responsibility (ie how similar are these to the old role?).

Maintaining status and pay is not necessarily sufficient to make an alternative job role “suitable” if there are other clear differences between the two roles. For example, if an employee would not use the same skills in a new role or their working hours are significantly rearranged, the new role is unlikely to be a suitable alternative.

If the new role is entirely within an employee’s job description, they may be matched into it. If there are some differences between the two roles, the employee should be offered a trial period.

When can an employee say no to a suitable alternative role?

If it is reasonable for an employee to refuse what appears to be a “suitable” alternative role, they will still be entitled to a statutory redundancy payment.

Whether or not it is reasonable for an employee to turn down an offer of an alternative role depends on their specific circumstances including:

  • the circumstances in which the offer is made, eg the time they are given to consider it;
  • whether or not the role is temporary; and
  • the employee’s personal situation, eg the impact it would have on their commute or family responsibilities.

The Employment Appeal Tribunal (EAT) decision in Readman v Devon Primary Care Trust underlined the extent to which the reasonableness of refusing a job offer depends on the employee’s specific circumstances.

This case involved a nurse who had worked for the NHS since 1976. From 1985 onwards she was based in community nursing rather than a hospital setting. Following a reorganisation in 2007, she was offered a position at the same grade but in a hospital setting. She refused this job offer and claimed she was entitled to redundancy pay. Although the tribunal concluded that this offer was suitable alternative employment, the EAT said that her refusal was reasonable given the length of time since she had worked in a community setting. She was therefore owed redundancy pay.

What are the risks if an employer wrongly treats a job offer as a suitable alternative?

The main difference between a suitable alternative and (non-suitable) alternative job offer is that unreasonably refusing a suitable alternative role means that the employee may be made treated as dismissed without being paid a statutory redundancy payment.

Statute does not set out what happens to enhanced company redundancy pay in these circumstances. In practice, employers’ policies on redundancy may mirror the statutory position by saying that employees will not be paid redundancy pay if they refuse a suitable alternative job role.

If an employer wrongly treats a job offer as a suitable alternative and refuses to pay an employee redundancy pay as a result, the employee may lodge a claim for a statutory and/or enhanced redundancy pay and unfair dismissal.

What are the key points for employers to keep in mind?

When revising job roles, employers should remember:

  • to compare the new role with what the employee actually did in practice (their job description may be outdated);
  • that, if an employee’s personal circumstances mean that it is reasonable for them to refuse a suitable alternative role, they will still be entitled to a statutory redundancy payment; and
  • to make sure they have documented what impact refusing a suitable alternative job role has on entitlement to any enhanced company redundancy pay.

Hayley Johnson is a senior solicitor in the employment team of law firm Brodies LLP.

This article was originally published on 21 May 2012. It was updated on 23 October 2015 by Ashok Kanani, employment law editor.

24 Responses to Legal Q&A: Redundancy and redeployment – what is a suitable alternative role?

  1. Susan 27 Feb 2014 at 2:58 pm #

    The work load has decreased but will increase soon my employer states that they will redeploy me in a different location have I any rights to redundancy. I am disabled and do not want to move but do I have any rights. they say it is a redeployment

  2. Susan 27 Feb 2014 at 2:59 pm #

    Have i any rights i have worked for my employer for 30 years

  3. Emma Watkins 3 Mar 2014 at 9:00 am #

    I am on maternity and would like to reasonably refuse a ‘suitable alternative’ (deemed by local government) due to travelling, change of hours and childcare. They are saying that if I do I will be making myself unemployed. Can they take my letter of refusal as giving in my notice automatically? I would like to take redundancy but can they refuse that?

  4. natalie 16 Jun 2014 at 7:40 pm #

    I am currently 15 weeks pregnant and work with autistic adults with challenging behaviour, my risk assessment has come back and said its unsafe to work with these adults which is reasonable, they now want to transfer me to a different location which is 1.5 to 2 hours away commuting on bus each way, change my hours and financialy would cost me more to travel.. is this classed as reasonable alternative work as i dont think it is and do i have the right to refuse as i see its not acceptable?

    • fio 17 Dec 2014 at 5:10 pm #

      I’m pretty sure that making you travel much further makes it an unsuitable alternative.

  5. JAG54 29 Jun 2014 at 5:27 pm #

    Hi I am currently going through redundancy process, i have had a few problems regarding the process and found the company had made an error and had to re calculated the matrix scoring I have decided not to go to appeal but would like to send a letter regarding the error to the chief executive regarding my experience with the process by doing this am i compromising my enhanced payment in anyway

  6. Sarah 3 Jul 2014 at 8:36 pm #

    My company closed down my shop I had 12 weeks notice they asked if I wanted to take redundancy or stay with the company I said I wanted to stay I was given a list of vacancies I chose to go to another store which they had a managers vacancie available they said I had to have a telephone interview which I had but I have heard no more I finish work tomorrow and still not heard any thing where do I stand it was the same job just a slightly bigger store in an area about an hour away ?

  7. shona 6 Jul 2014 at 10:41 pm #

    My circumstances is I had a grievance out 11 years ago I was told it was up held and I would never need go work with this manager again. Now the organisation in a position but they have to put us together I refused so I was told I needed to so I went to counselling and remploy who made me realuse that I need to draw a line under the situation now ghis individual has went off sick and refusing to work with me. Now I am getting redeployed is this fair can they do this as she a manager or can I cgo for constructive dismissal

  8. Sandra Gillespie 23 Jul 2014 at 7:51 am #

    I am a care at home assistant working with North Ayrshire council. I currently work 37hrs a week Monday-Friday. My employer is now saying that due to a review my job is no longer available. They are offering me a 4 on 4 off contract 10 1/2hrs daily over the 4 days work. They are also saying that redeployment will only be offered if I have a valid reason for not accepting there 4 on 4 off proposal. Can you clarify my position on what I can do.

  9. Janeen 28 Jul 2014 at 8:30 am #

    I have recently been faced with a situation at work which is rather worrying. My manager spoke to me whilst I was in the corridor outside her room. She had mentioned previously that a manager had left a post due to vr. Our conversation was ad hoc of course and she told me that she plans to relocate/redeploy me to another post. During the conversation which was very vague and confusing I expressed an interest only, however I also said that I would preferably to stay in the post I to which I was contacted. This was June 2014. During then I have had a performance review which has not reflected any moves to a new post which I actually raised. My post and future development where discussed with view that I was staying. However, on July 17 2014, I heard once again down our corridor that a colleague had been offered my post by my manager. Following this I was expecting a call from my manager, I eventually saw regarding other work related matters, she said “by the way I need to discuss something with you”. I felt under pressure and was very aware that if I refused I was under a potential redundancy situation. I have of course persued the matter with our personnel department, and what is more worrying is that they could not see the potential risk.

  10. confused1 10 Sep 2014 at 9:56 pm #

    hi I have been put on potential redundancy and offered an alternative role and am supposed to be on trial at the moment however I am still doing my old role as they have not found any one else to do my role, what can I say to my employees as this is not giving me any time to see if I like the role

  11. Anon 29 Oct 2014 at 6:11 pm #

    After a re-organisation at work employees had to apply for the new posts created, however one colleague did not apply. After all the interviews have been auctioned and colleagues told if the outcomes, the employee who refused to reapply has been re-deployed to the position without an interview! This colleague has been told that she will not be entitled to redundancy as there is a “suitable alternative” advice?

  12. Rick 17 Nov 2014 at 4:48 pm #

    My employer has offered me a temperary job in two different places I stead of redundancy do I have to accept this offer? I normally work 5 nights a week but have now been offered 2 nights in one place starting earlier and I can’t get there at the time because I mind my kids.. The other place offered is twice the distance away and I wouldn’t be home in time to bring my partner to work as we share a car

    Please help

    • Emma 24 Nov 2014 at 5:23 pm #

      Hi Rick

      this doesn’t sound like it’s a suitable alternative as presumably your position used to be permanent? In addition as the working hours have changed and you would be unable to get to work on time I think you have a good case to request that you are made redundant instead. Be aware through that depending on your length of service and your company’s redundancy pay policy you may not be entitled to received an redundancy pay.

  13. secret squirrel 26 Nov 2014 at 10:08 pm #

    I have worked in my current job for 6 and a half yrs. I was poached from another cpmpany by the previous owner of the business. After a cpl of years with the recession I had my wages reduced by £4,00 and lost my company car. Then a while after that the bulk of my job was passed to a newer younger member of staff because it was thought he may get bored, My boss never told me but got him to do the dirty work. Now we have new owners and this other guy isn’t bringing in much work and this affects my commission. The owners have given me the choice of £6,000 pay cut, no commission but one day less to work (though they have stipulated the day I have off) I cannot live on the new wage. Is this constructive dismissal ?

    • Emma 27 Nov 2014 at 3:41 pm #

      Hi
      You may have a claim for constructive dismissal but this is notoriously difficult to prove. I would suggest that you first of all need to clarify whether your current role is being made redundant as a large reduction in wage, reduced hours or no commission all sound like significant changes to your role. If you are told no then I suggest you decline the options you have been presented. If you are told yes I would suggest that you tell them that the alternative role you are being offered is not suitable and ask to be made redundant instead (if that’s what you want to do)

  14. Ray 4 Mar 2015 at 7:43 pm #

    Hi. I have worked for my current employer, a large company, for 4 years. I was employed as admin staff and worked in this capacity for nearly 3 years. Then my employer decided to turn the office into a call centre. My employer already knew that I have Asperger’s Syndrome (a form of autism) and I advised them that the work was causing me great difficulty. After a year our Occ Health dept advised my employer that I should be medically redeployed back to admin work asap. My employer has offered me such a role but with a 10 hour a week reduction and on a temporary basis only. If I do not accept they have advised me I will be dismissed. Can you advise please?

  15. Anxious 10 Apr 2015 at 9:03 am #

    I opted for VR as the role I am doing is changing. After suffering with anxiety and depression the key changes are going to seriously affect my health as I struggle retaining new information and will be required to take on a lot more training. My VR has been declined and I have been told that this is a development need without an occ health report and it is a suitable alternative. This is making me extremely anxious what do I do?

  16. carole 5 May 2015 at 9:43 pm #

    I have worked in an office inviroment with a transport company for 38 years they are relocating with no admin jobs and told me that driving a bus is suitable other employment how can this be

  17. sue woollin 21 May 2015 at 6:20 pm #

    my workplace is closing, i am being offereda job at another location but it means travelling by bus at 5,oclock in the morning and will cost me £25 perweek in fares, as i only work 20hours a week this will have an impact on my wages, can I refuse the job and still get redundancy pay

  18. Dave 25 May 2015 at 11:13 pm #

    I have been informed I am to be made redundant. I work a 24/7 shift pattern 42 hours per week and my job is now being advertised in house on a 6-2 2-10 shift working 37.5 Hours per week. Is this legal. I haven’t been offered alternative employment but I have been told to apply for this role which I stress is my own job. Is this within the law for my employer to do this. What are my rights. I have worked here over 4 years.

  19. DP 7 Jun 2015 at 6:53 pm #

    Hi I am a retained firefighter. My fire station is closing and I have been offered two alternatives. 1 become full time. This would mean leaving my existing main job. I would loose my existing Final salary pension flex able working at least a 10k pay cut and have to work night. I am on call for 96 hours per week, but the retained role is flexible and part time.
    As my original retained contract is part time is it suitable redeployment?
    Or I have been offered a bank contract 5 hours minimum a month?
    Is this also an acceptable alternative?
    Any advice welcome.

  20. Mrs Clarke 30 Nov 2015 at 8:11 pm #

    I was at risk of redundancy but have been told I have to take the same job in another department. The manager and I have worked together before and we do not get on. This is causing me distress but I’ve been advised by my employer to take the job or resign. What can I do?

  21. Chris Way 19 Jan 2016 at 4:03 pm #

    I work at a call centre, the service line I work on is an information gathering line, this is going to change to an enquiry line, previously I tried this type of work and was off ill with stress. Would I be able to ask for redundancy?
    Tine