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Redundancy and alternative employment
Adrian Fryer
Redundancy is one of the five ‘potentially fair reasons’ for dismissal recognised in UK law. However, to convert a ‘potentially fair’ redundancy into a ‘fair’ one, employers must be able to show that the situation was a genuine redundancy and that a fair process of selection and consultation was followed. One of the key requirements for fairness is that the possibility of alternative employment has been considered. There are two different concepts which are relevant to redundancy, and both must be taken into account by employers:
- Exploring alternative employment options – a failure to adequately consider alternative employment could lead to a finding of unfair dismissal. Employers should not limit their search to similar roles – all identified alternative employment options should be placed on the table. The scope of the duty is larger for larger businesses and group company vacancies should be included in any circulated list. It’s important not to pre-judge the sorts of roles an at-risk employee might be interested in.
Considering the availability of suitable alternative employment – ‘suitable alternative employment’ would be a position within the employer’s business or an associated business that offers an employee terms and conditions comparable to their current role. It is the employer’s responsibility to show that the offered job is suitable, taking account of factors such as skills, pay, location, working conditions and responsibility. If an employee unreasonably refuses an offer of suitable alternative employment, then they will forfeit their right to a statutory redundancy payment. The employer has to show that the refusal was unreasonable, and this will hinge on the specific facts, including the employee in question and their personal circumstances.