The Court of Appeal case of Readman v Devon Primary Care Trust has recently addressed the test for whether an employee is considered to be acting reasonably if they refuse what appears to be suitable alternative employment. The Court of Appeal decided that the matter should be remitted back to the Employment Tribunal on the basis that the test is not to “import” the band of reasonable responses test which applies in unfair dismissal cases, but whether the employee in their particular situation, acted reasonably in refusing the offer of employment.
The Employment Appeal Tribunal (EAT) had previously found that the employee in this case had not unreasonably refused an offer of suitable alternative employment and was therefore entitled to receive their statutory redundancy payment.
This case involved a nurse employed by a NHS Trust since 1976. The employee nurse was employed as a community modern matron responsible for around 120 staff. Following an amalgamation of services, the employee nurse found that she was at risk of redundancy.
There were three offers made to the employee nurse of alternative work, two were at a lower grade and one at the same grade based at the hospital where the employee nurse’s office was based. The employee nurse decided to reject this offer on the basis that her career path and qualifications were in community nursing.
The employee nurse did eventually commence employment in one of the roles on a lower band but subsequently received a job offer for a position in Vancouver, Canada and therefore terminated her employment during her trial period.
The employee nurse brought a claim in the Employment Tribunal (ET) for payment of her statutory redundancy payment. The ET found in favour of the employer in that the offer made was of suitable alternative employment, which had been unreasonably refused by the employee nurse.
The employee nurse appealed to the EAT which found that the ET had not considered the employee’s reason behind her decision that she had no desire to work back in a hospital environment and that this was therefore a justifiable reason for the refusal. The EAT found that the decision to refuse the offer had been within the band of reasonable responses. The employer appealed.
This case will be of concern to those employers where there is an incentive to redundancy over redeployment, such as the NHS, local government or situations where long service exists. This decision supports the trend that employees who have fairly subjective grounds for refusing suitable alternative employment following restructures can do so meaning that these situations are potentially more expensive and challenging than first thought.
Laura Allanson is an Associate Solicitor and Head of the Employment Department at BHW Solicitors in Leicester. Laura can be contacted on 0116 281 6237 or by email at firstname.lastname@example.org.