This article is divided into Eight Parts for easier reading:
- Part 01: Background.
- Part 02: Redundancy Pay and Taxes.
- Part 03: Redundancy and Consultation.
- Part 04: Suitable Alternative Work and Finding Other Work.
- Part 05: Redundancy and Other Factors.
- Part 06: Redundancy and Insolvency.
- Part 07: Directors.
- Part 08: Miscellaneous.
Part 04: Suitable Alternative Work & Finding Other Work
Your employer might offer you ‘suitable alternative work/employment’ within your organisation or an associated company (termed redeployment). In fact, an employer is obliged to try to find suitable alternative work for an employee they plan to make redundant and this step, whether there is an alternative position available or not, should be part of the consultation process.
Whether a job is suitable will depend on a variety of factors, including:
- How similar the work is to your current job;
- The terms of the job being offered;
- Your skills, abilities and circumstances in relation to the job; and
- The pay (including benefits), status, hours and location.
Things to consider:
- Deciding on what is actually suitable alternative work can be a highly contentious issue without clear rules as it must always depend on the circumstances of the case.
- To some extent it is what is mutually agreed by the employer and employee as both have a part to play.
- The employer can quite reasonably argue that a more senior position may not be suitable but it is the employee who decides whether a more junior position is.
- Under ‘suitability’ one must consider the nature of the employment offered.
- An employment tribunal has to make an objective assessment of the job offered but it is not, however, an entirely objective test, in that the question is not whether the employment is suitable in relation to that sort of employee, but whether it is suitable in relation to that particular employee.
- It comes really to asking whether the job matches the person: does it suit their skills, aptitudes and experience?
- The whole of the job must be considered, not only the tasks to be performed, but the terms of employment, especially wages and hours, and the responsibility and status involved.
- The location may also be relevant, because as the employment appeals tribunal once stated “commuting is not generally regarded as a joy”.
- No one single factor is decisive; all must be considered as a whole.
- Was it, in all the circumstances, a reasonable offer for that employer to suggest that job to that employee?
- And the sole criterion by which that is to be judged is ‘suitability’.
- If an alternative position is available, the new job must be offered before the planned redundancy is due to take place.
- It must begin no later than four weeks after the end of the previous role.
- If the employer does not follow these steps, they must make a SRP.
- If the offer of an alternative job is unreasonably refused by the employee, they lose their right to SRP.
- Your redundancy could be an unfair dismissal if your employer has suitable alternative employment and they do not offer it to you.
- A change in the terms of the employment contract will often be involved, in which case redeployment can only take place with the employee’s consent.
- If you turn down a suitable alternative post that is offered by your employer before you are made redundant, your employer may be able to refuse to pay you a redundancy payment. Specifically, you would lose your redundancy rights if:
- Your employer (or an associated employer, or an employer taking over the business) offers you a new job before your current contract expires and which starts within four weeks;
- The job is suitable for you; and
- You unreasonably reject it.
4.1 Is There a Redeployment Pecking Order?
Sometimes there are fewer vacancies than people wanting to fill them. An ‘ordinarily’ redundant employee is only third in the pecking order which runs:
- A redundant woman on maternity leave;
- A disabled individual being moved into a new role as a reasonable adjustment; then
- Others whose jobs are redundant.
Where there are more applicants than places it is entirely proper for an employer to adopt a mechanism for assessing who to offer the role to, e.g. through competitive interviews.
4.2 An Offer of Suitable Alternative Work
If your employer does offer you another job it needs to be:
- In writing;
- Made before your contract ends; and
- If a different job to the one you are doing, the employer will need to explain how it is different.
You should not have to apply for the job.
4.3 What if I Refuse an Offer?
- You may lose your right to SRP if you unreasonably turn down suitable alternative employment.
- You may turn down a job before or during a trial period, but not post trial period (Section 4.4).
- In order to refuse an offer of suitable alternative work you will need to give a good reason why it is not suitable, with examples including (not an exhaustive list):
- Lower pay.
- Health issues stop you from doing the job.
- You have difficulty getting there, for example because of a longer journey and/or higher cost, or lack, of public transport.
- It would cause disruption to your family life.
- Your contract could say you have to work anywhere your employer asks you to (known as a ‘mobility clause’).
- This could mean turning down a job because of its location could risk your right to redundancy pay.
- If your employer does not accept your reasons for turning down the job, they could refuse to pay your redundancy pay.
- Have an informal chat with your employer and ask them why they do not accept your reasons.
- Explain why you think the job is not suitable.
- If they still do not accept your reasons, you could seek advice from a colleague, union rep, ACAS, or even a solicitor.
- You can make a claim to an employment tribunal if you think the job you have been offered is not suitable.
Things to Consider:
- On the question of whether an employee’s rejection of a job is unreasonable, the test is whether the employee’s behaviour and conduct, looking at it from their point of view, on the basis of the facts as they appeared, or ought reasonably to have appeared, to them at the time the decision had to be made.
- It is also worth noting that the burden of proof is on the employer to show that the reasons are unreasonable; the employee is not required to show that they are reasonable.
- The following principles apply to looking for suitable alternative employment:
- The obligation is to look for, and consider offering, suitable alternative employment. It does not quite go as far as requiring the employer to offer it (but if an employer does not it may be an unfair dismissal).
- The search for suitable alternative employment should not be limited to the same section of the business that the employee worked in although it is probably going too far to require a search amongst associated companies/employers.
- It is not unreasonable to expect an employer to even consider posts which are already filled, even if that means bumping the employee currently in that post.
- As well as looking, the employer should carefully consider the possibility of offering the job. This most regularly comes up where the alternative is a demotion. The question of whether a demotion is suitable is the employee’s to answer, not the employer’s, and should be the subject of consultation;
- Identifying transferable skills is a proper activity for the consultation process.
- If making an offer of suitable alternative employment the employer must give sufficient information to the employee about it so that the decision can be properly informed. This will always include the financial prospects for the new role.
- If the post is suitable, but the terms upon which it is offered are not, then this can make the dismissal unfair.
- Any obligation to retrain the employee will be limited to what is reasonable. Showing them how to operate a slightly different machine is clearly different to totally retraining them.
- No employer is expected to make an offer if it contradicts an agreement made with the union.
4.4 Do I Have a Trial Period?
- You have the right to a 4 week trial period for any alternative employment you are offered.
- The 4 week period could be extended if you need training, and any extension must be agreed in writing before the trial period starts.
- The trial must start within 4 weeks of your previous job ending.
- The trial must start after you have worked your notice period and your previous contract has ended.
- This will help to avoid confusion or disputes if the trial does not work out, and it is a good idea to set out the dates for the trial in writing.
- Tell your employer (and vice versa) during the trial period if you decide the new job is not suitable.
- This will not affect your employment rights, including your right to SRP.
- You will lose your right to claim SRP if you do not give notice within the 4 week trial period.
- If at the end of the trial period you are still in the job, you will lose any rights to a redundancy payment.
- In law, you will have accepted the new job.
- If the trial period is successful then you are not dismissed.
- If you reject the new job before the end of the trial period because it turns out to be unsuitable, or for good personal reasons (Section 4.3), your redundancy will be considered to have started on the day your old job ended.
- However, if you say the new job is not suitable but your employer disagrees, your employer may refuse to pay your redundancy payment, leaving you to challenge this in an employment tribunal.
- You should take advice before you reject an alternative job offer (unless it is obviously unsuitable for you). You may be in a stronger position if you at least try it out and give clear reasons for rejecting it if you find it unsuitable.
4.5 What about Time Off to Look for Other Work?
- If you have been continuously employed for 2 years by the date your notice period ends, you are allowed a reasonable amount of time off to:
- Look for another job; and
- Arrange training to help you find another job.
- How long you can take will depend on your circumstances.
- No matter how much time you take off to look for another job, the most your employer has to pay you is 40% of one week’s pay. For example:
- You work 5 days a week and you take 4 days off in total during the whole notice period – your employer only has to pay you for the first 2 days.
4.6 What about Help Finding Other Work?
- You can get help from the Jobcentre Plus Rapid Response Service to:
- You may also be able to get help with costs, such as:
- Travel to work expenses;
- Tools or equipment; and
- Vocational training – you must be in your notice period to be considered.
- You can contact the Rapid Response Service:
- If you suspect you are going to be made redundant;
- During your notice period; and
- Up to 13 weeks after you have been made redundant
- Contact the Rapid Response Service @ firstname.lastname@example.org.
There is a different service if you are in Scotland or Wales.
4.7 What about Job Seekers Allowance/Universal Credit?
- Check out whether you can claim Jobseeker’s Allowance (JSA) or Universal Credit (UC).
- JSA is an unemployment benefit you can claim while looking for work.
- If your redundancy pay off is too high you may not qualify for income-based JSA, but you are entitled to contribution-based JSA as long as you have paid sufficient NI contributions.
- To claim JSA online, visit the GOV.UK website.
- It is important to sign on even if you do not qualify for benefits so you do not miss out on NI credits while you have no earnings.
- If you have an incomplete NI record this could affect your entitlement to the State Pension and other benefits later on.
- The Redundancy Payments Office (RPO), a division of the Insolvency Service, when calculating your notice pay, is obliged to subtract the amount of JSA or UC you were entitled to receive during your notice period – even if you did not claim it.
- You will need to prove that you were rejected for these benefits in order to get your full notice pay from the RPO.