Suitable alternative employment

09 July 2019

If a role is no longer tenable in your business and you have to let a staff member go, there’s a way to keep them with your business.

You can find them a suitable replacement position. This is a possible alternative for redundancies. If that sounds like the ideal resolution to your current situation or you need further redundancy advice, you can call us on 0800 028 2420.

Our 24-our HR advice service is also available to guide you through the process of retaining staff.

There’s also our guide below to take you through what the process involves.

What is suitable alternative employment?

It’s where you provide the opportunity for an employee to take on a different job to their current position as they are unable to continue in this position. 

In some cases, you might want to hold an interview for suitable alternative employment. You can conduct the interviewing process in your normal way.

The need for you as an employer to offer suitable alternative employment could arise in various situations.

For example, during a redundancy suitable alternative employment acts as a way stop an employee losing their job with the company.

Another circumstance in which you can consider alternative employment is if an employee is no longer able to fulfil part or all of their job requirement.

This could be down to a change in their own circumstances, such as if a delivery driver receives a ban from driving.

Alternative roles and the Employment Act 1996

You may wonder if what amounts to suitable alternative employment is outlined within a Fair Work Act (this isn't UK legislation), or other forms of legislation.

In the UK, it’s outlining is in the Employment Act 1996.

Generally, the objective test as to whether a job would be suitable has regards to the skills and qualifications needed to do it, its status, pay and benefits.

However, it’s also a subjective test from the employee’s perspective, which may depend upon their personal circumstances.

It’s important to remember that pay in the new role does not need to match that of the old one.

For example, in a situation of a redundancy alternative employment, a lower salary is an option—as long as the employee agrees to it in writing.

Peninsula Business Services can help

Since 1983 we’ve assisted tens of thousands of small and medium-sized businesses with any of your hiring requirements—and that’s in-house or externally.

When running a business, finding the time to understand individual laws is difficult.

And not every business can rely on an in-house HR department, which is where an industry-leading business consultant can help you.

Request a call back for assistance on any employment law issue you currently have. We’ll be in touch as soon as possible.

Do I always have to offer alternative employment?

Under employment law on redundancy, alternative employment (if available) needs outlining to the employee.

This is so they can consider if they want to switch to the new role, or proceed with the redundancy exercise and leave the company.

This duty continues throughout the redundancy process, including any period during which the employee is working out their notice.

Remember, those on maternity leave have the right to a suitable alternative employment above everyone else.

Furthermore, those returning from maternity, adoption, or shared parental leave after a period of 26 weeks have the legal right to return to an alternative role, with the same terms and conditions as before, if their previous job is no longer available.

Prior to 26 weeks, you must allow them to return to the same job.

Returning to the driver example, a driving ban would not necessarily mean you must dismiss the employee if there were other roles they could potentially do within the company.

In this situation, you should consider the qualifications and skills required for alternative roles, alongside how your company may have handled this situation previously.

But what happens if there’s a failure to offer suitable alternative employment?

If the employee is later able to demonstrate there were alternative roles they could have worked, but there was dismissal without consideration, you may face a potentially costly claim of unfair dismissal.

Reasonable refusal of alternative employment

Once you have made an offer of alternative employment, you cannot force an employee to accept it.

They may feel the new role doesn’t suit them—or may not accept any changes to their terms and conditions that could arise as a result.

However, it’s important you make sure you don’t make assumptions that an individual would not wish to take an available position, even if that role receives pay at a lower rate.

During a redundancy situation, if an employee receives a suitable alternative employment offer and unreasonably refuses this, they don’t have entitlement to a statutory redundancy payment.

However, it’s important for you to clearly establish the grounds for reusing suitable alternative employment.

To give another example, if the new role requires the employee to relocate, a future employment tribunal may not consider it suitable.

Need our help?

Get in touch and we’ll talk you through your recruitment strategy, as well as how to reduce staff turnover: 0800 028 2420.

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