Gerard Airey and Courtney Step-Marsden succeed in statutory redundancy pay claim

The facts:

The Claimant, Luke Robinson, was employed by Guys and St Thomas NHS Foundation Trust (‘the Trust’) from 20 June 2011. Initially he was employed as a General Manager, which is a grade 8c role. He was then engaged in a number of fixed-term secondments over a period of 9 years in which he was working as a Programme Director (‘PD’), which is a grade 8d role.

In January 2022 the Claimant confirmed to the Trust that his latest secondment at the Isle of Wight was ending and he asked to meet to discuss roles that may be open to him at the Respondent. As his substantive role was redundant and there were no other roles available, the Claimant was going to be made redundant with effect from 15 June 2022.

On 4 April 2022 an EHR Programme Manager (‘PM’) role (grade 8c) was created. The Claimant was not matched to this role through the Trust’s Interim Organisational Change Policy. He was approached about the role on 27 May 2022 and provided the job description on 30 May 2022. He confirmed to the Trust that he did not believe this to be suitable alternative employment due to a number of factors including loss of status, autonomy and responsibility.

The Trust invited the Claimant to a matching interview on 13 June 2022. The Claimant was unwell and as a result the Trust wrote to him and offered him the role. He refused this as he did not believe it to be suitable and he requested his redundancy pay. The Trust refused to pay this sum and the Claimant therefore brought a claim for his statutory redundancy pay entitlement.

The Law:

In claims relating to refusal of an offer of alternative employment the Tribunal is required to assess if the offer is objectively suitable. If so, it then goes on to consider whether the employee acted subjectively reasonably in rejecting it. That assessment is based upon whether it is suitable to that particular employee. The Tribunal will ask itself, does the job match the person and their skills, aptitudes and experience. The level of responsibility and status involved must be considered.

The Tribunal must judge the decision to reject the offer from the employee’s point of view. The burden of showing the job offer was suitable and the employee’s refusal was unreasonable is on the employer. Each case will be fact sensitive. Generally, a drop in status may make a role unsuitable even if earnings are maintained by way of pay protection. The fact a role is temporary may make it unsuitable and the timing of the offer will also be relevant, although not a decisive factor in terms of whether the employee acted reasonably in refusing an offer made shortly before the termination date.

Conclusion:

The Tribunal found that the Trust failed to follow its own Interim Organisational Change Policy in concluding the role was a suitable one for the Claimant. The Trust applied a test of whether it was “more likely than not” that the roles matched. This was more so a 51% match test rather than a 70% match test, which was the test required by the policy.

The Tribunal also found that the step down from 8d to 8c would inevitably have had some significance. It was held that the Claimant not reporting to the board was also a considerable step down in terms of his place in the hierarchy. The Claimant had significant autonomy in his PD role but in the new role he would be 1 of 8 PMs reporting to a Head of Programmes who was even then 2 steps below the ultimate PD.

The Tribunal noted that the Claimant managed a budget of £25M in his PD role at the Isle of Wight and had line managed staff. Before the Tribunal, there was no evidence of his budgetary responsibility and line management responsibility in the new role. Having considered the situation in the round, the Tribunal held that the role wasn’t objectively suitable. The loss of status, autonomy and responsibility were simply too great to render the role objectively suitable in the circumstances.

The Tribunal went on to hold that even had the role been objectively suitable then it would also have found that the Claimant acted subjectively reasonably in rejecting it. The matching interview was ‘somewhat out of the blue’ scheduled to take place 2 days before his dismissal. Even thought the Claimant was off sick, the offer was then made 2 days before employment was due to terminate, the Claimant had told the Trust he didn’t believe the role would be suitable. The Trust then made no real attempt to engage with him about the question of responsibility, autonomy and status. It was not reasonable to ask the Claimant to take a lower-ranked role within a very large project and become a smaller cog in a very large wheel.

Comment:

The case shows that when looking at suitable alternative employment, it is not as simple as saying that a role a band below will automatically be suitable. The Tribunal will need to scrutinise whether the offer really was suitable taking into account fact-sensitive considerations. The case also highlights the importance of employers complying with their own policies in this type of situation. It is also important to note that the Claimant was not unreasonable in refusing the role given the fact the offer was made only 2 days before his termination.

The full Tribunal judgment can be found here:

Article by

Gerard Airey

ga@kilgannonlaw.co.uk

07832 371 757

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This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 22.03.2024