Alternative employment was constructive dismissal
Suitable alternative
Where an employee is being made redundant you are legally obliged to offer them any suitable alternative employment that’s available within your business.
Whilst this is an area in which there is relatively little case law, the Employment Appeal Tribunal (EAT) has handed down an important ruling which is relevant to all employers in Argos Ltd v Kuldo 2020 (see The next step ).
Background facts
Ms Kuldo (K) began working for Argos (A) in 2007. In 2017, A was bought out by Sainsbury’s and K’s department subsequently underwent a major restructure.
During the restructuring process, K was informed that her job role was at risk of redundancy, but she and a colleague (C) were both being considered for a newly created job role.
Colleague quit
Shortly thereafter, K was told that C had resigned. As a result, K was automatically given - which is also known as “mapped into” - the newly created job role and was no longer at risk of redundancy. A did not consult with K over its mapping decision and stated that her old and new job roles were “broadly similar” .
K felt that the two job roles were quite different and the new job role was unsuitable as alternative employment because it was of a lower status, had fewer responsibilities and a change of duties.
Employee disagrees
A rejected K’s grievance and refused to consider her counter proposals. At this point, K stated that she did not accept the new job role and asked A to confirm she was being made redundant. Instead of doing this, A sent her a letter confirming her appointment to the newly created job role.
Immediate resignation
K then resigned and claimed constructive dismissal. When she won at the tribunal, A appealed to the EAT. It has now held that K was entitled to resign as A had failed to discuss the new job role with her and this was a serious breach of the implied duty of trust and confidence.
Tip. In a redundancy exercise, the suitability of alternative employment must be considered from the employee’s perspective, not the employer’s. For example, does the alternative job role match the employee’s skills and experience, is there increased commuting or less opportunity for promotion? This list is non-exhaustive.
Tip. Don’t automatically shift - or map - an employee into another job role. This should only be done with their express agreement. Always consult with them and discuss any concerns.
Tip. An offer of alternative work should be put in writing (see The next step ). If an employee refuses what you believe is suitable alternative work, ask them to put their full reasons in writing.
For the EAT’s ruling in this case and an offer of alternative work, visit https://www.tips-and-advice.co.uk , Download Zone, year 22, issue 17.
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