Bird v Stoke on Trent Primary Care Trust

In redundancy cases, the suitability of alternative employment and the reasonableness of refusing it are separate questions. Suitability requires an objective assessment of the job, considered in relation to the particular employee. The whole package must be assessed, including duties, skills, experience, remuneration, hours, responsibility, status and location.

Reasonableness is also employee-specific. The question is whether the employee’s reasons were sound and justifiable from the employee’s perspective, assessed on the facts as they appeared, or ought to have appeared, at the time. A tribunal must consider whether someone in that employee’s circumstances could reasonably have formed the relevant view. It must not substitute its own assessment for the employee’s personal assessment.

Ms Bird was employed by the Stoke-on-Trent Primary Care Trust in a post combining approximately 80% management and 20% clinical work. Following restructuring, her post was at risk of disestablishment. The Trust offered her two grade 7 clinical posts, which contained substantially greater clinical responsibilities and limited clinical leadership or management elements.

Ms Bird declined the offers, relying principally on the change in the balance of duties and the resulting loss of managerial status. The Employment Tribunal found one offer suitable and her refusal wholly unreasonable, and dismissed her claim for a redundancy payment. It did not decide the suitability of the other offer. The central issues before the Employment Appeal Tribunal were whether the Tribunal had correctly assessed suitability and reasonableness under sections 141(2) and 141(3)(b) of the Employment Rights Act 1996.

1. Appeal allowed. The finding that Ms Bird was not entitled to a redundancy payment was set aside. The claim was remitted for rehearing by a differently constituted Employment Tribunal.

2. The statutory questions whether alternative employment is suitable and whether refusal is unreasonable must be considered separately, although the more suitable an offer is, the easier it may be for the employer to establish unreasonable refusal.

3. Suitability involves an objective assessment of the employment offered, but the assessment is not wholly objective. The question is whether the employment is suitable for the particular employee. The tribunal must consider the whole job as a package, including its duties, terms, remuneration, hours, responsibility, status, location, and relationship to the employee’s skills, aptitudes and experience. A different job is not necessarily unsuitable, although increasing difference may make suitability harder to establish.

4. The Tribunal failed to take into account material features of the proposed employment. It did not properly factor in that Ms Bird’s existing post was essentially managerial whereas the offered post was essentially clinical, or her principal argument that she would move from managing a team to being managed within a team and would lose the status of being a manager within the NHS. Her earlier unwillingness to apply for purely managerial posts did not make the later clinical posts more suitable.

5. Reasonableness had to be assessed from Ms Bird’s point of view, on the facts as they appeared, or ought to have appeared, when she refused the offers. The Tribunal was entitled to consider whether her perception of loss of status was reasonable, but it had to ask whether someone in her particular circumstances could reasonably have reached that view. It wrongly substituted its own view by characterising the perception as irrational. Genuineness alone was insufficient.

6. The Tribunal had also mixed up the descriptions of the two posts. Although that error did not necessarily determine the outcome, it made reconsideration by the same Tribunal inappropriate.

• Employment Appeal Tribunal: Allowed the appeal from the Employment Tribunal’s dismissal of Ms Bird’s redundancy-payment claim. The decision was set aside and the claim remitted for rehearing by a differently constituted Tribunal.