Can an employer offer a more junior role to a potentially redundant employee and is it obligatory that it is offered? Martin Brewer and Esther Smith advise.

The question:

We may make a role redundant within our organisation in order to reduce costs. A new position with a new focus will be created if we did this. This new position is in the same team as the (potentially) redundant position but a more junior one, with less salary attached to it. Can we offer to the person that may be made redundant the chance to apply alongside other external candidates? Or can we not do this because the position does not match their current salary? Or are we expected to offer it to them anyway without seeing anyone else?
 

Legal advice:

Martin Brewer, partner, Mills & Reeve
 
You need to offer this new role to the person selected for redundancy as being potentially suitable alternative employment before you open it up to either internal or external competition. The law provides a statutory four-week trial period during which an ongoing assessment of suitability can be made. If it turns out either you or the employee reasonably decides the role is not suitable the employee’s redundancy can be implemented.  Incidentally the date of dismissal is deemed to be the date the previous job ended.
 

Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar
 
When dealing with a redundancy situation, employers have an obligation to consult with the employees affected to try to avoid dismissing them by reason of redundancy.  This includes consideration of suitable alternative roles to offer them on theirs becoming redundant.

Whilst the position you are considering creating appears more junior than the redundant role, it appears that the employee at risk could, on the face of it, carry out the duties required of the new junior role.  On that basis you should be giving that employee first refusal of the post as an alternative to dismissal if their role does disappear.

If they accept the new role, then they will take it on the terms and conditions applicable to it, unless you decide to agree something else with them.  If you offered the role externally you could be challenged on the fairness of the dismissal as your obligation should be to the current employee in this situation.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.