Spencer & Anor v Gloucestershire County Council

Where an employee refuses an offer of alternative employment, suitability and reasonableness are separate questions under section 82(5)(b) of the Employment Protection (Consolidation) Act 1978. The employer may determine the required standard of work, but that does not decide whether the employee’s refusal was reasonable. The employee’s concern that the work cannot be performed to an adequate standard may be relevant. Some factors may bear on both suitability and reasonableness. The issue remains fact-sensitive and must be evaluated by the employment tribunal. An appellate tribunal should not substitute its own assessment where material evidence supports the tribunal’s conclusion.

Two school cleaners employed by Gloucestershire County Council were offered continued employment on reduced hours under a reorganised cleaning system following financial cuts. They rejected the offer and were dismissed. An industrial tribunal majority found the employment suitable but held that their refusal was reasonable. The Employment Appeal Tribunal allowed the Council’s appeal, holding that an employee’s personal standard could not justify refusal where management accepted a lower standard, subject to limited exceptions. The cleaners appealed to the Court of Appeal. The central issues were whether their own assessment of the required standard could be relevant to reasonableness under section 82(5)(b), and whether the Employment Appeal Tribunal was entitled to overturn the industrial tribunal’s fact-based conclusion.

Disposition. Lord Justice Neill delivered the first judgment. Lord Justice Balcombe and the Master of the Rolls agreed. The appeal was allowed with costs. Leave to appeal to the House of Lords was refused.

1. Section 82(5)(b) of the Employment Protection (Consolidation) Act 1978 required consideration of two distinct matters: whether the offered employment was suitable in relation to the employee, and whether the employee unreasonably refused it.
2. The employer was entitled to decide the standard of work it required. That did not answer the separate question whether refusal was reasonable in all the circumstances for the particular employee.
3. The court deprecated an excessively rigid distinction between suitability and reasonableness. A factor might bear on both inquiries, although the tribunal had to keep the two questions analytically separate.
4. There was no general rule that an employee’s concern about being unable to perform work to the employee’s desired standard was irrelevant. The concern might be reasonable or unreasonable, depending on the facts. The industrial tribunal was entitled to evaluate the evidence, including the employees’ reasons for believing that the work could not be done adequately.
5. The Employment Appeal Tribunal was not entitled to overturn the industrial tribunal’s conclusion where there was material evidence supporting the finding that the refusals were not unreasonable. Comparison with another case, including Morganite Crucible Ltd v Street [1972] 1 W.L.R. 918, was of limited assistance because the issue was fact-sensitive.

1. Court of Appeal (Civil Division) allowed the appeal from the Employment Appeal Tribunal, with costs, and refused leave to appeal to the House of Lords: [1985] EWCA Civ 14.
2. Employment Appeal Tribunal allowed the Council’s appeal from the industrial tribunal and held that the employees’ personal standard did not justify refusal of work acceptable to management.
3. Industrial Tribunal found that the offered employment was suitable but that the employees had not unreasonably refused it.