Devon Primary Care Trust v Readman

Under section 141 of the Employment Rights Act 1996, whether an employee unreasonably refuses suitable alternative employment is assessed from that particular employee’s point of view, on the facts as they appeared or ought reasonably to have appeared at the time. The inquiry requires a specific judgment about the employee’s refusal. It must not be replaced by the broader reasonable-responses test used in unfair dismissal cases. A tribunal must address the employee’s central reason for refusal and analyse relevant personal circumstances, including any proposed change in the nature of the work. Where the tribunal has failed to do so, an appellate tribunal should remit the matter unless the conclusion is plainly and unarguably right notwithstanding the misdirection.

The respondent, a long-serving community nurse and professional lead, was placed at risk of redundancy after an amalgamation of services. She rejected an offered band 8A modern matron post at a small community hospital. The Employment Tribunal found that the post was suitable alternative employment but that her refusal was unreasonable, and denied a statutory redundancy payment.

The Employment Appeal Tribunal allowed her appeal, substituted a finding that she was entitled to payment, and refused the Trust’s application for review. It held that her wish not to return to hospital nursing was a sound and justifiable reason viewed subjectively from her perspective. The Trust appealed, arguing that the Employment Tribunal had applied the correct test and that the EAT had impermissibly reassessed the facts. The issues were whether the tribunal had erred in law and whether the case should be remitted.

1. Appeal allowed and case remitted. The Employment Tribunal correctly stated that reasonableness under section 141 depends on factors personal to the employee and is assessed from the employee’s point of view at the time of refusal. That test, identified in Everest's Executors v Cox [1980] ICR 415, was nevertheless applied inadequately.
2. The tribunal failed to address the respondent’s central reason: after about 30 years in community nursing, she did not wish to work in a hospital, even a small community hospital. It was insufficient to rely on her failure to explore what duties would be lost or added. The tribunal had to decide directly whether, in all the circumstances, refusing that hospital post was unreasonable.
3. The relevance of the respondent’s emigration plans required fuller analysis. A desire to obtain redundancy benefits does not necessarily make a refusal unreasonable, since an employee may recognise the financial benefit while still giving adequate consideration to an offer.
4. Remittal was required. The question whether the refusal was reasonable was one of fact for the Employment Tribunal, as stated in Cambridge and District Co-operative Society v Ruse [1993] IRLR 156. The EAT could substitute its own conclusion only if the original conclusion was plainly and unarguably wrong, or the contrary result plainly and unarguably right notwithstanding the misdirection. That threshold was not met.
5. The EAT wrongly imported the reasonable-responses test from unfair dismissal cases. The test in Iceland Frozen Foods v Jones [1983] ICR 17 concerns whether an employer’s dismissal falls within a reasonable range. Section 141 requires a specific assessment of whether this employee, in this situation, acted reasonably in refusing the offer. The Cox test should not be complicated or distorted.

1. Court of Appeal (Civil Division) — Appeal from decisions of the Employment Appeal Tribunal dated 1 December 2011 and 13 April 2012; appeal allowed and case remitted to the Employment Tribunal.
2. Employment Appeal Tribunal — Allowed the respondent’s appeal from the Employment Tribunal and substituted a finding that she was entitled to a statutory redundancy payment; refused the Trust’s review application.
3. Employment Tribunal — Found that the hospital post was suitable alternative employment and that the respondent had unreasonably refused it, so she was not entitled to a statutory redundancy payment.