The redundancy process is a complex combination of rights, requirements and HR & legal risks for employers and the specific area of redeployment rights is no different. In this article, we summarise an employee’s redeployment rights in the specific context of a redundancy situation and how an employer can reduce the risk of workplace dispute, complaint or tribunal claim.
Redeployment in the workplace is the moving of an employee from one job or role to another. The new job or role does not necessarily need to be similar to the original and for example, can have different duties, be in a different location, have different pay and/or be of a different seniority level.
Employers may decide to redeploy employees for various reasons but must be particularly careful if this is done in connection with a redundancy situation or if a redundancy situation could be deemed to have arisen as a result.
In any event, it will be important to understand what employees’ redeployment rights are to reduce potential legal risks relating to changing an individual’s employment role and duties.
In a redundancy situation, an employer is obliged to consider ‘suitable alternative’ employment for the employees who are facing redundancy. This is essentially considering whether any of those employees could be redeployed elsewhere in the organisation. To satisfy this obligation, the employer must take certain steps.
In brief, if the employer:
- offers ‘suitable alternative’ employment and this is accepted by an employee facing redundancy, that employee is never made redundant and moves seamlessly into the new role;
- offers ‘suitable alternative’ employment, which is reasonably refused by an employee facing redundancy, that employee will be made redundant and entitled to statutory, and possibly enhanced, redundancy pay, depending on the organisation’s policy;
- does not offer ‘suitable alternative’ employment, the employee facing redundancy could claim unfair dismissal;
- offers ‘suitable alternative’ employment, which is unreasonably refused by an employee facing redundancy, that employee will lose their redundancy rights.
First, the employer needs to consider whether there is ‘suitable alternative’ employment available to the potentially redundant employees. Whether the alternative employment is ‘suitable’ or not will depend on various factors, including the similarity of the new role to the relevant employee’s current job, the terms of the new role, such as pay, location, benefits and seniority and the employee’s qualifications, skills and experience. Employers should, however, be wary of making assumptions about the type of alternative role that an employee may want; an employer should not, for example, refrain from informing an employee about a role which offers less pay or reduced status.
It is important to remember that considering whether there is any ‘suitable alternative’ employment at any one point during the redundancy process will not be sufficient. Employers must consider this throughout the redundancy process and if a ‘suitable alternative’ role arises at any time during that process, it should be offered to the employees facing redundancy.
Employers are able to offer the employee their original job as a ‘suitable alternative’. This may be possible if, for example, the redundancy situation arose after a marked decrease in work but there is then an upturn in work before the employee actually becomes redundant.
Employers are advised to document their considerations and reasoning when deciding whether ‘suitable alternative’ employment exists. Having this thought process in writing will evidence that the employer was considering its employees’ redeployment rights and could avoid potential disputes.
If no ‘suitable alternative’ employment is available, then the employer can continue with the redundancy process, paying the affected employees statutory redundancy pay and any enhanced redundancy pay in accordance with the organisation’s redundancy policy.
If ‘suitable alternative’ employment is available, the process of offering it to the affected employees will depend on the size of the organisation and the number of employees facing redundancy. Where the organisation is fairly small and/or the affected employees are few in number, speaking to the employees about the options is a good idea and the offer of the ‘suitable alternative’ employment should be given to them individually in writing. Although there is no legal requirement to put the offer in writing, doing so will ensure that there is evidence that the offer was made and that the process was duly followed. However, if the organisation is sizable and a large number of employees are facing redundancy, pointing them to an inter-company vacancy list or providing the list to them may be sufficient.
The offer must be made before the employee’s current role ends, that is, before they are made redundant and the alternative role must begin within four weeks of their current role ending, otherwise, they will be deemed to have been made redundant and entitled to receive redundancy pay.
It is important that the employer provides enough information about the alternative role to enable the employee to properly consider it and make an informed decision about whether to accept the role or not.
Although all affected employees will need to be informed about ‘suitable alternative’ employment, the choice as to who to offer the alternative role can be the employer’s decision based on who is best for the job. However, if any affected employees are on maternity or adoption leave at the time, they must initially be offered the alternative role before anyone else.
If the employer does not seriously consider whether there is ‘suitable alternative’ employment or fails to offer such employment to the affected employees, the employees may be able to bring an unfair dismissal claim against the employer.
No, the employee does not have to accept the offer of ‘suitable alternative’ employment.
If the employee’s refusal is reasonable and no other ‘suitable alternative’ employment is found for them, they will be entitled to statutory redundancy pay and any enhanced redundancy pay in line with the employer’s redundancy policy.
However, if the employee unreasonably refuses the offer, they may lose the right to statutory redundancy pay unless the alternative role was not actually ‘suitable’. Employers should also be aware that even if an employee’s refusal was unreasonable, an employment tribunal could still find their dismissal to be unfair if the correct redundancy procedure was not followed. It is therefore imperative that redundancies are undertaken with caution and a full understanding of the legal requirements.
In determining whether the employee’s refusal of ‘suitable alternative’ employment is reasonable, the employee is entitled to consider their personal circumstances, such as their health, childcare requirements and travel time. In addition, the amount of time which they are given to consider their decision will be taken into account as well as the length of time in which they have been in their original role and whether the new role is temporary or permanent.
If the ‘suitable alternative’ employment offered involves different duties to that already undertaken by the employee in their current role, the employee is entitled to a four-week trial period. It is important at this point to consider how the alternative role differs to the employee’s current role as it really is, not how it is set out in their job description. It is advisable to set out the dates for the trial period in writing and ensure that the trial period only begins once the employee’s current role has ended.
The initial four-week period can be extended if required for the employee to undertake training but not due to the employee’s absence due to illness or holidays. Any extension must be agreed in writing before the start of the trial period.
If more than one alternative role has been offered to the employee, they are entitled to a four-week trial period for each role.
If the employee rejects the offer of the role during the trial period, their employment rights are not affected, provided that their rejection is reasonable, and they will still be entitled to statutory redundancy pay and any enhanced redundancy pay offered by their employer. However, they will lose this right if they decide not to accept the job but do not give notice during the trial period or if their rejection is unreasonable.
Employers should put in place a redeployment policy or at a minimum, address redeployment within the organisation’s redundancy policy, and ensure that managers and staff are aware of this.
The policy should include when and why the employer may seek to redeploy an employee and the employee’s redeployment rights. In relation to redundancy, it should set out the employer’s obligations to consider ‘suitable alternative’ employment and employees’ rights and position if they accept or reject an alternative role. While such a policy may not prevent an unfair dismissal claim from being raised, it should help to achieve consistency across the organisation and will show the employment tribunal that the employer has thought about the situation and is aware of its obligations.
- Employers have to show that the alternative role offered is ‘suitable’ and that any refusal of the alternative role by an employee is ‘unreasonable’.
- Be aware of any ‘suitable alternative’ employment that arises during the redundancy process. Considering this at just one point in time is not adequate.
- Keep written evidence of all considerations and decision-making during the redeployment process.
- Ensure that sufficient information about the ‘suitable alternative’ employment is given to the relevant employees to allow them to make an informed decision.
- Do not rush their decision-making by giving them tight deadlines.
- Do not assume that a refusal to accept the alternative employment is unreasonable. It is sensible to discuss this with the relevant employee to understand their reasons rather than simply refusing to pay their statutory redundancy pay which could result in their bringing an unfair dismissal claim.
- Ensure that information is given in writing about how the refusal of ‘suitable alternative’ employment will affect any enhanced redundancy pay offered by the employer. This could be included in the redeployment policy.
- The employer should have an adequate grievance procedure as an employee is obliged to follow this before taking any matter to the employment tribunal.
- This could result in a compromise between the parties and at the very least, will provide advance notice to the employer of an aggrieved employee.
While reducing legal risk is a pervasive concern when changing an employee’s contractual role and/or terms, one of the key HR objectives in redeployment projects is maintaining positive working relations with the affected employees. Redeployment can be an anxious process for employees and employers are expected to provide support to their employees and maintain communication to keep them informed of the procedure and to learn of and respond to their specific concerns.
DavidsonMorris’ experienced HR consultants and employment law specialists offer holistic guidance and support to employers in relation to staff redeployment rights and redundancy processes. We have extensive experience in helping employers identify and manage the legal risks, providing advice that protects your best interests while supporting the commercial drivers behind the process of redeployment and redundancy.
If you have a question or need guidance on staff redeployment rights or the employment law aspects of any kind of organisational restructure or workforce change, please contact us.
Last updated: 14 April 2020