Case ref: 8.4/June '05

Summary of case

An employer was going through a restructuring exercise. A number of typists working in the organisation were offered alternative jobs including general admin assistants, switchboard operators etc. The typists had formerly worked for a government department before being TUPE transferred to the new employer.

Advice requested

The solicitor was asked if the alternative posts offered were "a suitable alternative". If not, where did the typists stand legally if they refused to accept these alternative job offers?

Key advice provided by Thompsons

The solicitor noted that the company claimed the typists were multi-skilled. A graph produced by the employer suggested only 50% of typists' time was spent typing. 

Taking this and other factors into account the solicitor advised: 

"It is arguable that the alternative posts do not necessarily constitute suitable alternative employment. 

"When assessing 'suitability' you must consider the nature of the employment offered. It is for the tribunal to make an objective assessment of the job offered (Carron Co v Robertson (1967) 2 ITR 484, Ct of Sess). It is not, however, an entirely objective test, in that the question is not whether the employment is suitable in relation to that sort of employee, but whether it is suitable in relation to that particular employer. It comes really to asking whether the job matches the person: does it suit his/her skills, aptitudes and experience? 

"In this instance, I think it could be contended that the posts are not suitable as: 

a) The new posts are less skilled; see Standard Telephones and Cables Ltd v Yates (1981) IRLR 21 EAT. 

b) A typist is likely to suffer from not exercising her typing skills regularly; 

c) I am advised typists would also use their IT skills making them less attractive on the labour market should they decide to leave; 

d) There is a possible loss of status although this might be more difficult to argue given that typists do some of these other duties anyway; 

e) The multi-skilled argument of the company is not particularly convincing. The pie-chart is misleading as it includes not other duties but, also, absences from work. In reality, typists spend most of their time typing. 

f) I am not aware of any loss of pay. Clearly, this would be an issue.

Impact of refusing offer of suitable alternative employment

"A refusal of suitable alternative employment can lead to a loss of the right to a redundancy payment. However, this will only happen where the employee acts unreasonably in refusing the offer. 

"The question is not whether a reasonable employee would have accepted the employer's offer, but whether that particular employee, taking into account his personal circumstances, was being reasonable in refusing the offer i.e. did he/she have sound reasons for turning down the offer?

"The test is similar to that applied in cases of unfair dismissal in judging whether an employee has failed in his duty to mitigate his loss by unreasonably refusing an offer of further employment (e.g. Wilding v British Telecommunications plc [2002] IRLR 254, CA). 

"This will, of course, depend on the individual circumstances of each employee. It may be difficult to argue this where, for example, someone has previously applied for the post of switchboard operator as appears to be the case with at least one member."

Legal department comment

Hopefully this provides some useful guidance for representatives dealing with similar issues. No doubt the PCS Policy and Research Department will be able to confirm what guidance and best practice is available in terms of experience gained across PCS Bargaining Units.

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