In redundancy situations employers sometimes offer “suitable alternative employment” as a means of avoiding redundancy. Suitability depends on how similar the work is, the terms of the job being offered, the skills, abilities and circumstances of the person being offered the job and the pay, status, hours and location. If a reasonable offer is unreasonably refused, the individual concerned may lose the right to a statutory redundancy payment.
When the writing was on the wall for Tavistock and Summerhill School as a result of falling rolls, the governors decided there was no option but to close the school and gave notice of redundancy to the staff in March 2011 – without much regard to collective consultation, although the Head and Deputy Head were involved in management discussions about it. The parents stepped in and mounted a rescue plan, and offered most of the staff new employment just before the end of the summer term, when their employment was due to end. No such offer was made to the Head, and no explanation was ever given for this. The teachers turned the offer down, having found other employment. Were they reasonable in doing so? Both the Employment Tribunal and the Employment Appeal Tribunal agreed that they were. The offer came very late in the day after all had made alternative arrangements either by way of alternative employment or, in one case, planned retirement. Accordingly all were entitled to redundancy payments.
A number of further issues were considered in the case, including the obligation to carry out collective consultation. It was found that a protective award was due to all of the employees, including those on the management team who had been aware of what was being discussed:
A clear distinction must be drawn between the discussions with a view to saving the school at a high management level and consultation with employees about job losses or possible job losses in the future.
With regard to the failure to offer the Head her job back, given that no explanation was put forward for this, although there was a potentially fair reason for her dismissal – redundancy – it was in fact unfair “on the simple basis that insufficient steps had been taken to find alternative employment for her” and no alternative potentially fair reason was established.