Commission for Healthcare Audit & Inspection v Ward (Employment Appeal Tribunal)

When conducted properly a redundancy programme will look at ways of avoiding dismissals. If there is suitable alternative employment within the organisation then this can save an employee from dismissal. In this case the Employment Appeal Tribunal (“EAT”) had to examine the overlap between the suitability of the employment and whether it was unreasonable or not for the employee to refuse such employment.

Ms Ward’s position was deleted after a review in 2006. She had previously survived a restructuring exercise in 2004. Alternative employment for Ms Ward was identified by the Commission but she did not agree that the role was suitable, on the grounds of status, job content and experience, future job prospects and future job security.

The Employment Tribunal found that the Commission had made an offer of suitable alternative employment but that Ms Ward had not unreasonably refused the offer. This meant that she did not lose her entitlement to a redundancy payment. The Tribunal took into consideration the amount of time that it had taken to complete the reorganisation process and the fact that the alternative role offered to Ms Ward was only suitable for her “on balance”.

The Commission appealed on the grounds that the decision was perverse and that the Tribunal was wrong to take into account the degree of suitability when considering the issue of refusal.

The onus of proving that an employee’s refusal of an offer of suitable alternative employment was unreasonable lies with the employer. The Commission’s appeal said that once it had been established that the offer of alternative employment was objectively suitable then suitability should not be addressed again when considering whether the employer has shown that, viewed subjectively, the employee’s refusal of the offer was unreasonable.

Ms Ward’s case was that new job differed in content by 60% from the old, she had become disillusioned with the reorganisation process and the initial offers for the alternative employment lacked clarity.

The EAT agreed that where a new job offer is overwhelmingly suitable it may be a little easier for the employer to show that a refusal is unreasonable. However, where the new post is only marginally, rather then plainly, suitable a Tribunal is entitled to carry out a balancing exercise looking at all the relevant issues.