It's the law: Redundancy, part four - suitable alternative employment

Failure to consider alternative employment renders redundancies unfair.

When making employees redundant, charities must not only consult with employees (Third Sector, 2 May), but must also consider offering suitable alternative employment to them. This is very important, and an employer should do all that it reasonably can to provide alternative work. Failure to consider alternative employment will render any redundancy an unfair dismissal.

It is up to the employer to review vacancies within the organisation and to discuss options with the potentially redundant employees during consultation. There is no obligation on an employer to list and explore every vacancy, merely those that might reasonably accommodate the otherwise redundant employee. It is important to avoid ruling out options on the basis of preconceptions or stereotypes that could be discriminatory.

The test to determine whether an offer of alternative employment is suitable is an objective one. Deciding whether an employee is reasonable in rejecting alternative employment is subjective, however, and the employee's circumstances must be considered. A refusal by an employee to do work they consider to be of a lower standard might mean the work is not suitable or has been reasonably refused.

An employee who is made redundant loses the right to a redundancy payment if he or she unreasonably refuses an offer of suitable alternative employment. That offer must meet several conditions. It must be made by the original or an associated employer and before the end of the employee's previous contract; it must take effect either immediately upon the ending of the previous contract or after an interval of not more than four weeks; and it must either be on the same terms and conditions as the previous contract or be suitable employment in relation to the employee.

If the terms and conditions of the new contract differ, the employee has a statutory trial period of four weeks, beginning with the end of his previous employment, in which to decide whether the alternative employment is suitable. This trial period can be extended in certain circumstances.

If the employee accepts the alternative employment, he or she is deemed not to have been dismissed on the termination of the original employment for the purposes of determining any liability of the employer for redundancy purposes.

The final column in this series will look at what charities must consider when making redundancy payments.

- Emma Burrows, partner and head of the employment group at Trowers & Hamlins solicitors

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