What is 'reasonable alternative employment' in a redeployment situation?Posted in : Seamus Says - Employment Law Discussion on 7 September 2018
Q. An employer has two sites but there's a big 15-mile difference. Would this be considered to be reasonable alternative employment in a redeployment situation?
Scott: Another question on the Primark fire situation, concerning all those businesses around the exclusion zone at the moment. They can't get into work. It's the same trauma, if you like, which has caused them problems. They may not have the same resources that Primark have and whatever. They may not be unionized. They may not be the same consultation process, but they still have to speak to employees, and it comes down to, do they have contracts that have the right to lay off and so on? And how long it goes on but here's another question here about redeployment. The employer has two sites and is considering closing one of those sites and wants to relocate all the employees to the other site, but there's a big 15-miles difference. Would this be considered to be reasonable alternative employment?
A couple of the employees may not have transport, but there are bus routes. And again, it comes down though essentially in this that it may be reasonable, it may not be reasonable, but it depends on the subjective situation and circumstances of each employee. So if one employee is actually closer to the workplace, that may be perfectly reasonable. If the other one is, actually, instead of having a 10-mile commute, has a 25-mile commute, it may not be reasonable if their personal circumstances, or family circumstances, or whatever, mean that they can't actually do the job.
Seamus: Yes. And there could be all sorts of issues in terms of just things that are going on in their personal lives. Maybe they have children that they leave off to school, and the alternative of getting a bus to A, to B, to C to get into work, that that situation just isn't going to work out. So, I mean, it is subjective and it is specific to each employee. Again, I suppose, you are going back to your contract of employment and you're looking to see whether or not you have maybe a mobility clause or some right in terms of movement of the employees as well, but that might not always help you out, you know. And if you end up at a tribunal, the tribunal is going to look to see whether or not, you know, for that specific employee, whether it was reasonable or not.
Scott: Or whether you've ever activated that mobility clause. I mean, if you've got employees that work in both sites, and you close one of the sites, then it's probably not even a redundancy because the place of work could be either, but if you've got somebody who has never left Site 1, and it's close to their home and they walk in, then you offer them a job somewhere else, then you really have to look at what else might make that reasonable?
Scott: And if it's not reasonable, you have to pay them off and give them redundancy money. You know, there is very little opportunity for unfair dismissal if somebody turns down an alternative job and you've closed the plant, you know.
Seamus: Yes. I mean, where there's alternatives there to the employee and they don't take those up, it's harder for the employee to justify any kind of unfairness with it. But just maybe come back to the other businesses within the exclusion zone in around Primark, I suppose the big distinction for those businesses may be that they just simply will not have the same resources as what Primark does. So, I think, you know, there's a Tesco right next door that I think is excluded off, Tesco, and has a lot of resources, a lot of stores, they may be able to facilitate some redeployment. And again, looking at that coming down to the suitability for each of the employees, I know that there's a smaller Tesco just within Royal Avenue itself, but you wouldn't imagine that it would be able to absorb that many, you know, other employees.
But the likes of, you know, there's a McDonald's that's located just facing it, and then there's a number, I think, of small, sort of, family-run-operated businesses, and the reality for them is that their business is closed, they're not making any money, and there's no work for the employees where the business is closed, and it really does leave a difficult situation for a frustrated employer who wants to run and operate their business, and who ultimately might have to go down a redundancy route with its employees, and lose valuable, skilled employees. And whenever they go to open up again, having to take new employees on, unless those employees come back to work for them.
Scott: That's if they do open up again. I mean, they're going to be closed if this building stands in the exclusion zone. So they're going to be closed 'till after which is probably that many of them make the most profits that keep them going for the rest of the year.
Seamus: Absolutely, yeah. So, you know, really for those smaller businesses, and they're not going to have the resources the same as Primark in order to keep paying salaries, specifically if it's their only business and it's closed, and it's not making any money, and it looks to me that they're going to have to go down a redundancy route in terms of it.
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