What should an employer consider when deciding whether there are suitable alternative roles to offer during a redundancy process?
Tuesday 27th May 2025
In the recent case of Marshall v East & North Hertfordshire NHS Trust, the Employment Appeal Tribunal (EAT) upheld the tribunal’s decision that an employee’s redundancy dismissal was fair as although the employer did not offer her two available alternative roles, it was reasonable to assume she had no interest in them.
Background
Marshall (the Claimant), a Surgical Site Surveillance Nurse for the East & North Hertfordshire NHS Trust (the Respondent), was dismissed for redundancy in January 2021.
The Claimant subsequently filed several claims with the Employment Tribunal (ET) concerning her redundancy, all of which were dismissed.
The Claimant appealed to the EAT, part of her appeal concerning her claim for unfair dismissal. She argued that during the redundancy process, there were two alternative roles available which the Respondent did not offer her.
EAT Decision
The EAT upheld the tribunal’s dismissal of the claim. In cases of alleged unreasonable failure to offer suitable alternative employment, the tribunal assess whether the employer’s actions were within the range of reasonable responses, based on what the employer knew at the material time. Thus, a dismissal can be fair if there are valid reasons to believe the employee would reject the role.
In this case, the tribunal deemed the alternative roles as entirely different from the Claimant’s original role because they were ward-based. The Claimant had previously expressed that she did not want a ward-based role during the Covid pandemic and failed to apply for the advertised roles. Therefore, the tribunal found the Respondent’s decision not to offer these vacancies to the Claimant reasonable.
Comment
Employers must note that the timing of when information is received by the employer is crucial. Information received after dismissal cannot be used to assess the fairness of the dismissal; it may only be relevant for determining compensation.
This case highlights an exception, and it should be emphasised that considering alternative employment options is a vital element of a fair redundancy process and should not be overlooked without substantial evidence.
For further advice or support on how to minimise the risks of a redundancy process, please contact a member of our employment team.
