Redundancy and alternative work

Whenever a redundancy arises, employers need to give considerations to ways in which they can minimise the impact these will have upon the workforce. One of the ways this can be achieved is considering the possibility of other work - either within the business, in associated businesses or elsewhere. But what are the implications of this and what is the position if the employee is unsuited to or unhappy with the alternative work?

Duty to provide alternative work

When an employer is faced with the prospect of making employees redundant then that employer should be looking at ways in which the impact of those redundancies can be lessened and one of the most obvious ways in which to achieve this is by finding suitable alternative work for the employee within the employer’s own, or an associated, business, or failing that, assisting the employer to find employment elsewhere.

In order that the employee can make a decision as to suitability, the employer should provide sufficient details of the alternative employment, including:

• what it involves
• the basis upon which the offer is made,
• the contractual terms,
• the skills and abilities required
• the pay, status and hours, and,
• if it is not in the same physical location as the current job, where it will be based.

Whether or not the alternative employment is suitable will be up to the employee to decide. However, the employer may be able to lessen some of the employees reservations, if they exist, by agreeing with the employee, for example:

• that should their former role become available again then they will be given preferential consideration,
• that travelling expenses, or relocation costs, as appropriate, will be paid if the employee needs to travel to another location, or
• that they be given the opportunity to work overtime to make up for any short-fall in income.

Normally, the offer of alternative employment should be made before the existing job comes to an end and it is advisable that the offer of alternative employment be in writing, setting out the full terms and conditions described above. The job should begin immediately after the old job ends or no later then 4 weeks after that date.

Trial period

Where an employee is offered a alternative employment then they have the right to a four-week trial period in the new job where the terms of that new job differ from the previous ones, That trial period begins when the the previous contract comes to an end. If the employee requires training to carry out the alternative employment then the trial period can be extended by written agreement. The aim of the trial period is so that the employee can decide whether a new job is suitable without them having to give up their right to a redundancy payment. The employee can, however, give notice at any time up to the end of the trial period without their rights being affected although once the period has ended, if they are still in the alternative job their right to a statutory redundancy payment ends.

If you decide the new job isn’t suitable, you can give notice during the trial period without affecting your right to a statutory redundancy payment. If you haven’t given notice by the end of the trial period your right to statutory redundancy pay ends.

The other purpose of the trial period is to give the employer an opportunity to assess whether or not the employee is suitable for the alternative employment. If the employer decides that the employee is not suitable, then the job may be determined at any time during the four week period and the employee will then be entitled to their statutory redundancy payment. However, if the employee is dismissed during that period of any other reason, for example misconduct, then the employee may lose their entitlement to the statutory redundancy pay.

Refusal of alternative employment

If the employer offers the employee suitable alternative employment and the employee unreasonably turns down that offer the the employee may lose their right to statutory redundancy pay. Any dispute as to whether the alternative employment was suitable, or whether the refusal was reasonable, will be decided by an Employment Tribunal.

Refusal is likely to be regarded as unreasonable where there was little or no difference between the alternative job and the job from which the employee is being made redundant or where the employee refuses the new job without first looking into its suitability.

Time to find new employment

If there is no suitable alternative employment within the business or any associated businesses, then the employer may be required to allow the employee time off to seek another job or to attend interviews for a new job. If the employee has been continuously employed for at least two years on the date upon which the redundancy notice expires, then they have a statutory right to be allowed a reasonable amount of time off during your notice period either to:

• find and attend an interview for another job, or
• make arrangements for training

Bear in mind, however, that the employer is not required to pay the employee for the whole of the time they spend looking for a new job. The requirement at law is that only up to two fifths of a weeks pay needs to be paid for any time spent job-hunting.

If, having sought a new job, the employee is offered one, and it is due to start before the notice for the other job expires, the the employee should first of all attempt ot negotiate with the employer for an early release from the previous job. If the employer refuses then the employee can serve a notice upon the employer stating when they wish to end the current job to which the employer must respond. Leaving the previous job puts at risk some of the redundancy pay to which the employee would have been entitled. Disputes concerning this should be decided by the Employment Tribunal.

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