Readman v Devon Primary Care Trust

Under section 141 of the Employment Rights Act 1996, suitability of alternative employment and the reasonableness of refusing it are separate questions.

Suitability is assessed objectively, in relation to the employee’s skills, aptitudes and experience. Reasonableness is assessed from the standpoint of the particular employee, including personal circumstances and the facts as they appeared, or ought reasonably to have appeared, when the decision was made. An employment tribunal must address the employee’s core reason for refusal. It must not substitute the question whether a reasonable employee would have accepted the offer.

The appellant, a Community Modern Matron, was placed at risk of redundancy after a reorganisation. She was offered a band 8A Modern Matron post at a small community hospital. The Employment Tribunal found that the post was suitable alternative employment but held that she had unreasonably refused it, relying principally on her failure to investigate the role and on her wish to emigrate and obtain redundancy benefits.

She appealed, contending that the Tribunal had applied the wrong test by asking whether a reasonable employee would have accepted the offer, rather than whether her refusal was unreasonable for her own reasons. The central issue was whether the Tribunal had properly assessed her stated unwillingness to return to hospital nursing after a lengthy career in community nursing.

1. Appeal allowed. The Employment Tribunal correctly concluded that the Modern Matron post was suitable alternative employment. It was equivalent in status and pay, and the appellant’s skills were transferable. The differences in the hospital setting could be addressed through familiarisation, mentoring or limited training.
2. Section 141 of the Employment Rights Act 1996 requires separate consideration of suitability and unreasonable refusal. An employee may reasonably refuse an offer which is objectively suitable if the employee has sound and justifiable personal reasons for doing so.
3. The relevant question was whether this particular appellant acted unreasonably in refusing the offer, viewed in the light of her personal circumstances and the facts as they appeared, or ought reasonably to have appeared, to her at the time. The Tribunal was required to consider her principal stated reason: that her career and qualifications were in community nursing and that she did not wish to return to hospital nursing.
4. The Tribunal instead concentrated on her failure to explore the job’s duties and on her wish to emigrate or obtain redundancy benefits. It therefore failed to address the core reason for refusal and effectively asked whether a reasonable employee would have accepted the offer. That was a fundamental error of law.
5. The Employment Appeal Tribunal considered the evidence sufficient to determine the issue itself. The appellant’s decision, after 23 years in community nursing, not to return to hospital nursing was a sound and justifiable reason. Her background wish to emigrate and preference for redundancy benefits were not the main reasons for refusal.
6. The Tribunal’s dismissal of the claim was set aside. A finding was substituted that the appellant was entitled to a statutory redundancy payment.

• Employment Appeal Tribunal: Allowed the appeal from the Employment Tribunal’s decision and substituted a finding that the appellant was entitled to a statutory redundancy payment.
• Employment Tribunal, Taunton: Dismissed the appellant’s claim for a redundancy payment in Reasons sent on 2 November 2009.