What alternative roles must you offer on redundancy?
What alternative roles must you offer on redundancy?
An employee has lost her unfair dismissal claim after the Employment Appeal Tribunal (EAT) ruled that her employer's failure to offer her two available alternative roles on redundancy didn't render her dismissal unfair. Why was this?
Alternative employment not offered
As a general rule, if you propose to make an employee redundant, as part of a fair process you must make reasonable efforts to find and offer them any available alternative employment within your business. However, as the case below shows, this rule isn't always an absolute one.
In Marshall v East & North Hertfordshire NHS Trust 2025, Mrs Marshall (M) was employed by the Trust as a surgical site surveillance nurse, a role which involved reviewing and auditing infections data for surgical procedures and then producing reports for feedback to relevant teams. She was made redundant from this role in January 2021, following which she brought several claims, one of which was for unfair dismissal. She contended that the Trust should have offered her one of two infection protection and control (IPC) nurse roles which were available during the redundancy process.
The employment tribunal dismissed M's unfair dismissal claim and so she appealed to the Employment Appeal Tribunal (EAT).
Unsuccessful unfair dismissal claim
Upholding the tribunal's decision, the EAT ruled that the Trust's failure to offer M those roles didn't render her dismissal unfair. The Trust's actual fell within the range of reasonable responses because: (1) the alternative IPC roles were ward based and focused on proactively preventing infections, so the tribunal was entitled to conclude that they were "entirely different" to M's redundancy role; (2) when M chose to relocate to a new workplace in Summer 2020, she had indicated to the Trust that she didn't want a ward-based role during the ongoing pandemic; (3) both roles were openly advertised and M had chosen not to apply for them; and (4) M had also chosen to disengage from the assistance offered by the Trust in helping her find alternative employment. So, the Trust's decision not to offer the roles was a reasonable one.
Is it a futile offer?
This case demonstrates that where, during a redundancy process, you have reasonable grounds to believe that offering a particular alternative role to a potentially redundant employee would be a futile because there's no chance of them accepting it, your failure to then offer them that role won't necessarily make their redundancy dismissal unfair.
However, it's always risky to make assumptions about what roles an employee may or may not accept, to avoid being made redundant. Even a senior employee may be willing to accept a drop in status and salary rather than lose their job.
Tip. Even if a role appears wholly unsuitable and you don't think a potentially redundant employee would be interested in it, offer it anyway. Do this unless you have good evidence that they won't accept it, e.g. the role is in a different location or is only part time and they have already made clear during the redundancy process that they aren't willing to consider roles in other locations or part-time roles.
Tip. If the employee clearly doesn't have the skills, qualifications or experience required for a particular role (even with some relevant training), it would still be fair not to consider them for it.
The roles were entirely different to the employee's redundant role, she had indicated she didn't want those types of role and she had chosen to disengage from the redeployment support offered. So, the decision not to offer her the roles was a reasonable one. Don't assume though that an employee won't be interested in a role without good evidence.