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Case Report - Suitable alternative employment test clarified

View profile for Chris Dobbs
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In the case of Devon Primary Care Trust v Redman, the Court of Appeal has decided that the test for whether an employee is being reasonable in refusing what appears to be a suitable alternative to redundancy, is to consider:

“whether this particular employee in this particular situation acted reasonably in refusing the offer of employment”.

In Practice

Employers often forget that it is a two-stage test when deciding if an employee is being unreasonable in refusing a suitable alternative role. Unreasonable refusal means, of course, that an employee will forfeit their entitlement to a redundancy payment.

The first stage is to consider whether the alternative role is a suitable one. The test for this is objective, i.e. would another reasonable employer believe the alternative role is suitable. The second stage of the test is subjective, where the employee’s own circumstances and feelings are relevant to show that the alternative role is not suitable for them.

Kate Fretten, Employment Partner, says “If an employee can satisfy this test, then they will still be entitled to any redundancy payment. As employers, you will need to take a more rounded view going forward. You should also be aware of the individual’s circumstances before assuming the refusal of alternative employment is unreasonable.”

At Frettens, all of our solicitors offer a free initial meeting to chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.