The claimant in USDAW v Burns had raised various grievances against his line manager, all of which were (not unreasonably, the Tribunal found) rejected by the employer. He then had a period of sickness of over a year, following which, although he was fit to resume work, he refused to do so under his manager.
In response to being told that he could not return to work except under his current manager unless he were to relinquish his post as a recruitment and development officer, the claimant said he did not wish to leave the service of USDAW and would do anything. The USDAW General Secretary said he would inquire if any alternative work was available; in practice, the only other possible jobs available were clerical vacancies at another office, a short distance from the claimant's home. However, four days later the General Secretary told the claimant that there was no alternative post and he was dismissed.
The Tribunal found that, contrary to the assurance the claimant been given, no enquiry had been undertaken by USDAW as to the availability of clerical vacancies in Manchester or elsewhere. Nor had there been any investigation of the claimant's skill-set, something which might have been anticipated if there had been a serious attempt to match the claimant with a vacancy.
The Tribunal decided that the dismissal (agreed as being for "some other substantial reason" – SOSR) was unfair and this was upheld by the EAT. The employer's argument that it would have been futile to offer a clerical job in the Manchester office because the employee was so focused on his argument with his manager that he would not have accepted it, was rejected: the emphasis has to be on the employer's conduct. The employer had specifically assured the employee that other job possibilities would be explored.
Although the issue of considering alternative employment typically arises in relation to redundancies, this case is a reminder that the same point can also be relevant in SOSR dismissals, particularly in a situation where there is a clash of personalities rather than a breakdown of the relationship between the employer and employee more generally.