Can an employee be forced to return to their old job when their current position becomes redundant? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills & Reeve, advise.

The question:
I started working for my present company as a press operator working three shifts. Last year I successfully applied for a job at the company as a lab technician working regular 8:30am – 5pm. This job has been highlighted as becoming redundant in four weeks time. I am not being offered redundancy, only the option of going back to my old job working shifts again which I found too disrupting and bad for my health. My question is can I insist on redundancy on the basis that the redeployment being offered to me is unsuitable or unacceptable?

When I was given the job in the laboratory, I didn't receive any confirmation letter. Will this cause me any problems if I have to take my case any further?

John Robinson

Legal advice:

Esther Smith, partner, Thomas Eggar

It does not appear to be in dispute that your current role of Lab Technician is to be made redundant, and if you are at risk of redundancy the next question is whether or not, in this situation, the position offered to you is suitable alternative employment.

Where someone's position is redundant, it is incumbent on the employer to consider as part of the fair consultation process, whether there are any other positions within the organisation that can be offered to that person as an alternative to making them redundant. The test of whether a role is a suitable position is an objective one, looking at the nature of the two roles and whether or not the employee has the skills and abilities to carry out that role.

In this case, the position back on shifts as a Press Operator is a suitable alternative as you are clearly capable of performing that role, given that you were initially employed in that capacity.

If an employee refuses the offer of a suitable alternative position, it is then a subjective test – based on that individual's own personal circumstances – as to whether or not their refusal is reasonable. If that refusal is reasonable the employee should be made redundant. If the refusal is unreasonable the employer can terminate the employment on notice but the employee looses their entitlement to redundancy pay.

Here, if your refusal is based on health reasons it is possible that it would be deemed to be reasonable. However, if there is no evidence to back up your position and you have only been working in the new role for a short period, the employer may be able to demonstrate that your refusal is unreasonable.

Given that it appears from the information you have provided that you have a relatively short period of service in any event, the discussion may be academic if you are not entitled to any statutory redundancy pay. I suggest that you speak with your employer as soon as possible and make them fully aware of the reasons why you stopped doing shift work and support this with medical evidence as appropriate. They may well then take your refusal of the alternative role as reasonable and make you redundant.

The fact that you did not receive a confirmation letter regarding the role in the lab is neither here nor there as the terms of your employment will be a matter of fact and if you are working in that position on those terms, that will be the basis of your contract.

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

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Martin Brewer, partner and employment law specialist, Mills and Reeve

John, if your job is redundant then there is an obligation on your employer to offer you alternative employment if there is any. That is what your employer has done. If you accept the new job then all well and good. However, you do have the absolute right to refuse the offer.

If your refusal amounts to an unreasonable refusal to accept an offer of alternative employment which is suitable for you to do then you will lose your right to receive your redundancy pay. So that begs the question whether the offer amounts to an offer of, to use the shorthand, suitable alternative employment.

How is suitability judged? The cases say that the test of whether a job offer in a redundancy scenario is an offer of suitable alternative employment is objective but each job offered must be looked at in the particular employee's circumstances. In other words the same job offered to 2 employees may be suitable for one but unsuitable for another because their individual circumstances differ.

You don't say how long you worked shifts for although you do say it was 'disrupting' and 'bad for' your health. It seems to me that if that's right, and perhaps you can show that you applied for the current work for those reasons, you would have a reasonable argument that shift work is not suitable for you to do. However, you do run the risk of the employer disagreeing and refusing to pay you your redundancy pay. You must ask yourself if it's worth taking the risk. Isn't the sensible course of action to take the shift work and do it whilst looking for a new job (which of course you would have to do if you were made redundant anyway) rather than run the risk of getting nothing.

After all it's easy now to talk about taking your 'case' further, but if you do refuse the new job and get sacked with no redundancy pay and litigate, that could take many months to complete, all you would end up with if you were successful is your redundancy pay anyway and in the meantime you would still have to look for work as you have a duty to make efforts to mitigate your loss. I seriously question if the potential pain involved in fighting is worth the potential long term gain.

Martin can be contacted at: martin.brewer@mills-reeve.com

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