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Redundancy,


repudiatory breach and the correct comparator


Nicola Mullineux, Senior employment specialist for Peninsula, reviews the decision in three cases involving statutory redundancy pay entitlement, constructive dismissal and religious discrimination


Devon Primary Care Trust v Readman The Court of Appeal has allowed an appeal against a decision by the Employment Appeal Tribunal (EAT) that the claimant was not entitled to redundancy pay because she had unreasonably rejected alternative employment. The differences between her original role and the alternative offered were significant and therefore meant that the alternative role was not deemed suitable. She was entitled to leave that job and claim her statutory redundancy pay. The claimant, Readman, had been employed by Devon Primary Care Trust since 1976. From 1985 she had worked within the community and in 1995 was promoted to district nurse team leader. This position involved managing approximately 120 staff and was a band 8A professional lead role within the trust. Readman’s position meant that she had worked within the community for 23 years. Readman was informed that she was at risk of redundancy in November 2007,


at which point she applied for a band 8A professional lead role in a new structure, for which she was unsuccessful. Three choices of alternative employment were offered to the claimant, two of these being band 7 community positions. She began this on a trial basis but felt it was not suitable. The third alternative she was then offered was an 8A professional lead role; however, it was situated in a hospital rather than in the community. She declined it on the basis that she did not want to work in a hospital again. She then began proceedings in the employment tribunal claiming her statutory redundancy pay entitlement. When an employee is faced with redundancy, the employer must offer any suitable alternative roles in the organisation where these are available. The question over whether a role is ‘suitable’ is contentious, and a determination on this issue must include reference to the employee’s personal situation and must be assessed from their point of view. If the


...AN ERROR OF LAW AS IT FAILED TO ADDRESS THE FUNDAMENTAL ISSUE OF THE ‘HOSPITAL SETTING’


30 PayrollProfessional


employer and employee both agree that it is unsuitable, the original redundancy situation stands and the employee will receive their statutory redundancy pay entitlement. If the employee unreasonably refuses the suitable alternative role, they will lose their entitlement to redundancy pay. The tribunal found that the band 7 role was not a suitable alternative due to financial loss and loss of both status and responsibility. However, the tribunal felt that suitable alternative employment had been offered to the claimant in the hospital position and therefore she was not entitled to redundancy pay. The EAT disagreed. They found that Readman’s refusal to the hospital position was good and just, as she had worked in the community for over twenty years and a decision not to want to move to a hospital was not unreasonable. The tribunal decision was found to be so inadequate as to amount to an error of law as it failed to address the fundamental issue of the ‘hospital setting’. The Court of Appeal agreed with


the EAT’s decision on the issue of unreasonable refusal. It stated that the question of whether a refusal is reasonable or not is completely dependent on the employee and their circumstance. It is not


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