The claimant in Dunne v Colin & Avril Ltd was employed on a 24-hour week contract as a book-keeper. The three day week was for health reasons – she had leukaemia. When her employment transferred following a liquidation, she had discussions about her position with the person who was the principal of both the old and new businesses. Initially she was offered a 16-hour per week contract, which was not acceptable to her on financial grounds. The principal then proposed a 24-hour contract but involving 16 hours’ book-keeping plus eight hours of what was described as “Emily’s work” – that included some work in the warehouse. She declined the second offer and was dismissed.
At the Tribunal, it became clear that, because of her medical condition, the claimant could not tolerate the cold environment in the warehouse. However, she had not mentioned this as a reason for not accepting the new role prior to dismissal. Instead, she contended that the warehouse work (generally paid at a lower rate than her job) was inconsistent with her book-keeping skills and experience and would not be cost effective for the business.
The Tribunal concluded that the claimant's dismissal for redundancy was fair. The second job offer was substantially office based and her pay was going to remain exactly the same. In other words, it was a suitable one and her refusal to accept that offer was not reasonable.
The EAT was not happy with the Tribunal's decision and sent it back for reconsideration. There were two separate questions the Tribunal had to answer:
• was the alternative employment suitable?
• if so, was the claimant’s refusal of the offer of suitable alternative employment unreasonable?
The onus is on the employer to show both suitability and unreasonable refusal.
The Tribunal had wrongly concluded that because the claimant did not raise the effect of the cold warehouse environment on her medical condition prior to dismissal, she could not rely on it as part of her reason for refusing the alternative employment offered. The EAT said this was too prescriptive an approach. The question is whether the employer has shown that the refusal was unreasonable. The mere fact that the reason later relied on by this claimant in her form ET1, witness statement and oral evidence was not raised prior to dismissal does not mean that it can be disregarded in deciding the unreasonable refusal question.