Mid and South Essex NHS Foundation Trust v Stevenson and Ors – alternative employment

In this article we look at the decision made by the Employment Appeal Tribunal (EAT) in the case of Mid and South Essex NHS Foundation Trust -v- Stevenson & Ors [2023] EAT 115.

Mid and South Essex NHS Foundation Trust v Stevenson and Ors: the case

The Respondent, Mid and South Essex NHS Foundation Trust (the Trust) appealed the issue of whether the Employment Tribunal (ET) had made an error when deciding two ex-employees had not ‘unreasonably’ refused offers of suitable alternative employment and as such, should not have been denied their entitlement to a redundancy payment.

In this case, both employees were employed as a ‘Head of Human Resources’. Due to a restructuring their roles became redundant. They were both offered alternative employment in roles as ‘Senior HR Lead’.  Neither of them accepted the offers and they were subsequently dismissed due to redundancy.

The employees believed the new positions lacked autonomy and status but the Trust’s view was that the employees had unreasonably refused their offer of suitable alternative employment. Consequently, the Trust refused to pay redundancy payments.

The employees made claims against the Trust for unfair dismissal, breach of contract and claimed their redundancy payments. The EAT appeal only considered the issue relating to the redundancy payments.

The relevant sections under consideration were s135 Employment Rights Act 1996 (ERA) in relation to the entitlement to redundancy pay and s141 ERA which deals with the circumstances in which an employee loses that entitled if they unreasonably refuse an offer of suitable employment. In looking at entitlement, there are two questions to consider; was the offer of alternative employment suitable and did the employees unreasonably refuse the offer?

Regarding the first question, it was accepted the alternative offer of employment was suitable for the employees in question.  In relation to the second question, the consideration of ‘reasonableness’ is not whether the offer was reasonable to the employer, or whether the employee accepting the role would have been reasonable; rather it is whether the individual employee in question ‘unreasonably’ refused the role. The ET found in relation to this question that the employees did not unreasonably refuse the offer of suitable alternative employment.

In dealing with the Respondent’s appeal, the EAT found that despite the roles being suitable, there was sufficient basis, due to the claimants’ perception of the roles, for them to have not been unreasonable in their refusal.

Comment

This case highlights the importance of comparing alternative roles with existing posts, the practical differences and also the individual employee’s perceptions of new role and reasoning for refusal.

Further guidance and support

Our Employment team have experience in dealing with complex and difficult grievances in the healthcare sector and offer a range of support and assistance.

If you need advice on the issues covered in this article, please contact Catherine Daw or take advantage of our free 30-minute consultation with our employment law experts.

This content is correct at time of publication