Employers considering withholding a statutory redundancy payment, on the ground that they have offered a suitable alternative job which has been refused, should encourage employees to disclose any reasons they have for rejecting the alternative offered prior to a final decision. The onus is on the employer to show that (i) the alternative was suitable (in terms of the individual's skills and experience and the terms and conditions of the job), and (ii) the refusal was unreasonable, taking into account the employee's personal circumstances.
The EAT in Dunne v Colin & Avril Ltd has ruled that an employee can rely on a factor supporting the reasonableness of her refusal, even if she did not disclose it to the employer prior to dismissal. In that case, the employee rejected the alternative job on the basis that it was inconsistent with her skills, and did not mention that she could not tolerate the cold environment of the new job due to her leukaemia. Nevertheless, she could rely on this factor as showing her refusal was reasonable.
Employers must also make reasonable efforts to look for suitable alternatives in order to avoid unfair dismissal claims, so the more the employer can understand the employee's position, the better.