Business Law: Andrew West on what constitutes a ‘suitable’ alternative to redundancy

WHAT decides the “suitability” of an alternative role during redundancy?

It can be reasonable for an employer not to offer a redundant employee an alternative job if they are not a suitable candidate.

The recent case of Asif v Elmbridge Borough Council involved a redundancy exercise in which three council employees had to be selected from a pool of four, following a restructure. The selection criteria and process was agreed with trade unions.

Ms Asif had the lowest score of the four against the agreed criteria and she was selected for redundancy and given notice. Her three colleagues were offered the new posts as suitable alternatives to redundancy. During Ms Asif’s notice period, one of the three colleagues resigned, but Ms Asif was not considered for the vacant post and she claimed unfair dismissal.

Ms Asif argued that she had been unfairly selected for redundancy because she should have been given the newly created post, which had become available when her colleague resigned.

The tribunal decided that the interview process that had been undertaken by the council was designed to assess who was most likely to be capable of fulfilling the new role. There was nothing to suggest that the interview had been conducted in anything other than good faith, and the fact that Ms Asif had scored far lower than the other candidates meant that there was no point in offering the vacated post to Ms Asif.

Ms Asif appealed this decision, and on appeal it was decided that, as the selection criteria and interview process were applied in a consistent and reasonable way, it was not unreasonable for the council to then make a decision regarding Ms Asif’s suitability for the vacated post, based on their assessment of her as part of that process. It was reasonable to conclude that the job was clearly not suitable for her.

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This is another example of a pro-employer decision in the context of redundancy. The ultimate judgment on suitability is for the employer to make, particularly where there are new roles and the decision has to be forward looking, centring on the individual’s ability to perform the new job.

From a practical perspective, the case emphasises the need for employers to have objective reasons for not offering a role which becomes available. The employee may not like the answer, but at least they will understand the decision, making a challenge less likely.

What the law requires, however, is that the employee’s suitability for a role is considered objectively and reasonably, as the council was found to have done so in this case.

: : Andrew West is employment partner at Gotelee Solicitors.

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