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Refusal of Suitable Alternative Employment

The Employment Appeal Tribunal in the case of Dunne v Colin & Avril Ltd has considered the reasonableness of declining suitable alternative employment in a redundancy situation.

Background

The Claimant had leukaemia and was employed as a book-keeper on a 24 hour a week contract. Her employment transferred to the Respondent following liquidation of her previous employer and a redundancy situation subsequently arose. The Claimant was initially offered a 16 hour a week contract but she refused this for financial reasons. She was then offered a 24 hour a week contract which would consist of 16 hours’ book-keeping and 8 hours of working in the warehouse.

Due to the Claimant’s condition, she could not tolerate working in the cold warehouse and turned down the offer. However, she did not mention this to the Respondent as a reason for declining the offer. The Claimant was subsequently dismissed without a redundancy payment on the basis that she had unreasonably refused an offer of suitable alternative employment.

The Claimant brought claims to the Employment Tribunal for unfair dismissal and a statutory redundancy payment.

Decision

The Employment Tribunal decided that the Claimant’s dismissal for redundancy was fair and she had unreasonably refused an offer of suitable alternative employment. As the Claimant had not raised with the Respondent the reason why the second offer was not suitable, she could not rely on this as her reason for refusing the alternative.

However, the Employment Appeal Tribunal (“EAT”) disagreed. It is for the (employer) to show that:

  1. the offer of alternative employment was suitable; and
  2. the refusal of the suitable alternative was unreasonable.

The EAT stated that even though the Claimant did not raise her medical condition as a reason for refusal at the time of dismissal it should not be disregarded in deciding whether the alternative employment was suitable or her refusal was unreasonable.

The case was remitted to the Employment Tribunal for reconsideration.

Comment

Employers should be very careful before dismissing an employee without a redundancy payment on the basis of them refusing suitable alternative employment.

The case demonstrates that it is an employer who will have to show the employee acted unreasonably in refusing an offer and facts, other than those raised at the time, may be relevant or taken into account by a Tribunal when assessing this point.

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