Thank you. If someone is transferred under TUPE and their contracted role ceases to exist, or the new employer does not need as many employees doing that particular role, they could be made redundant. Whether the employer can offer them anything else to do would depend on a couple of things – one is whether this was possible under their contract and two, whether what they have been offered is considered suitable alternative employment.
If there is a potential redundancy situation, the employer has a duty to make a reasonable search for suitable alternative employment (SAE). If such positions exist they must then be offered to those at risk of redundancy. The objective is to avoid having to make someone redundant and keep them in a job.
There are two possible outcomes of this:
· The employee accepts the offer – in this case their employment will continue in the new role and thee would be no redundancy
· The employee rejects the offer – if that happens and the employee expects to still be made redundant, whether they do depends on the suitability of the offer and the reasonableness of their rejection, which I will discuss below.
If the offer is considered suitable and the employee unreasonably rejects it, they will be deemed to have resigned and would not be made redundant or be entitled to a redundancy payment. If the offer is unsuitable and they reasonably reject it, they can still be made redundant and receive redundancy pay.
Reasonableness is based on the subjective reasons the employee has for rejecting it, such as personal circumstances, health, family commitments, etc. Suitability is based on both objective and subjective criteria, with the most common factors that make an offer unsuitable as follows:
· Job content/status – drop in status (even if pay remains unchanged), changes in duties, which do not match the employee’s skills
· Pay and other benefits – significant drop in earnings/benefits (e.g. basic pay, bonuses, overtime, commission, etc)
· Working hours – change in shift pattern, significant extension/reduction of working hours
· Location – new location making it unreasonable to travel to the new place of work
· Job prospects – going from permanent to temporary or fixed-term work
Where an offer of alternative employment has been made and its terms and conditions are different to the employee's current terms, they have the right to a 4-week trial period. This is an opportunity for both employer and employee to determine its suitability. If during the trial period they decide that the job is not suitable they should tell their employer straight away and terminate the trial period. Assuming the above criteria apply and the offer was not suitable and was reasonably rejected, they should still be made redundant from their original job and receive redundancy pay.
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