Mid and South Essex NHS Foundation Trust v Catriona Stevenson & Ors

Under section 141 of the Employment Rights Act 1996, suitability of alternative employment and the reasonableness of an employee’s refusal are separate, although potentially related, questions. The statutory question is whether the particular employee unreasonably refused suitable employment.

The employee’s reasons must be assessed from that employee’s perspective when the offer was refused. An objectively mistaken perception, including one concerning autonomy or status, may nonetheless mean that refusal was not unreasonable if there was a sufficient basis for that perception from the employee’s point of view. Authorities provide guidance only; they do not add to or replace the statutory test.

The claimants’ Head of Human Resources roles became redundant after a restructuring. The Trust offered them alternative posts as Senior HR Leads. They refused and were dismissed for redundancy. The Trust withheld statutory redundancy payments, contending that the refusals were unreasonable.

The Employment Tribunal initially dismissed the redundancy-payment claims. On the claimants’ first appeal, the Employment Appeal Tribunal allowed the appeal and remitted the separate questions of suitability and reasonableness. On remission, the Tribunal found that the offered roles were suitable but that the claimants had not unreasonably refused them.

The Trust appealed on the sole ground that the Tribunal had failed properly to use its findings on suitability, and had failed to consider how the facts ought to have appeared to the claimants.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the claimants had not unreasonably refused offers of suitable alternative employment and were therefore entitled to redundancy payments.

2. Section 141 of the Employment Rights Act 1996 requires two separate inquiries where the new contract differs from the old one: whether the offer was suitable employment in relation to the employee, and, if it was, whether that employee unreasonably refused it. The inquiries can be interrelated, since a more suitable offer may make it easier for an employer to prove unreasonable refusal. They are not, however, identical, and guidance derived from authorities must not be treated as an additional statutory test.

3. The question of unreasonable refusal is employee-specific. It is assessed from the employee’s perspective, on the facts as they appeared, or ought reasonably to have appeared, at the time of refusal. There is no requirement for a tribunal in every case to use the precise formulation of how the facts “ought to have appeared” to the employee.

4. The Tribunal had not disregarded its suitability findings. In its reasoning on unreasonable refusal, it expressly found the claimants’ perception of reduced autonomy and status objectively groundless. It then correctly addressed the distinct question whether, given their reporting arrangements, concerns about the planning and future credibility of the new role, and absence of identified reports, their personal perception nonetheless made refusal unreasonable.

5. The Tribunal was entitled to find a sufficient basis for that perception from the claimants’ point of view. Its use of the expression that their perceptions were not groundless from their point of view was guidance drawn from authority, rather than a substitute for the statutory test; it then expressly applied the statutory question. No error of law was established.

• Employment Appeal Tribunal: The Trust’s appeal was dismissed in [2023] EAT 115.
• Employment Appeal Tribunal: On the claimants’ earlier appeal, Bourne J allowed the appeal and remitted the questions of suitability and reasonableness to the Employment Tribunal.
• Employment Tribunal, East London: On remission, it held that the alternative roles were suitable but that the claimants had not unreasonably refused them. Its earlier decision had dismissed the redundancy-payment claims.