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

The Employment Appeal Tribunal dismissed the employer's appeal and held that the Employment Tribunal did not err in law in concluding that the claimants had not "unreasonably" refused offers of suitable employment and so remained entitled to redundancy payments. The decision applied sections 135 and 141 of the Employment Rights Act 1996 and relevant authorities (including Executors of J F Everest and Bird) to emphasise that reasonableness is judged from the particular employee's point of view on the facts as they appeared, or ought to have appeared, to them at the time. Although the Employment Judge found the alternative role of Senior HR Lead to be suitable in relation to the claimants, he accepted that the claimants personally perceived a loss of autonomy and status and that their perception, while objectively groundless, was not groundless from their point of view; on that basis their refusal was not unreasonable.

Background and parties: The claimants were Heads of Human Resources whose roles were made redundant following a restructure. The employer offered each claimant re-engagement in the role of Senior HR Lead, which the claimants refused. The employer withheld statutory redundancy payments and the claimants brought claims including for redundancy payments.

Procedural history:

• The Employment Tribunal initially dismissed the redundancy payment claims (judgment sent 17 July 2019).
• The claimants appealed to the Employment Appeal Tribunal; Bourne J allowed the appeal on 5 August 2021 and remitted the matter to the Employment Tribunal for further consideration of suitability and reasonableness.
• On remittal the Employment Judge concluded the Senior HR Lead role was suitable in relation to the claimants but that the claimants had not unreasonably refused it; the employer appealed to the EAT and the appeal was heard on 15 August 2023, with judgment handed down 31 August 2023.

Nature of the claim/application: The appeal concerned entitlement to statutory redundancy payments under the Employment Rights Act 1996, in particular whether the claimants were excluded from payment by virtue of section 141 because they had unreasonably refused an offer of suitable employment.

Issues before the EAT: (i) whether the Employment Tribunal had erred in law in treating its findings on suitability as irrelevant to reasonableness; and (ii) whether the Employment Judge failed to consider how the facts "ought to have appeared" to the claimants when assessing reasonableness.

Reasoning and outcome: The EAT reiterated the statutory test that an employee loses entitlement to redundancy payment if she unreasonably refuses an offer of suitable employment under section 141. The EAT explained that although suitability and reasonableness are separate questions, suitability may be relevant to reasonableness. The tribunal had correctly cited and applied authorities (including Bird and Executors of J F Everest) and had expressly considered how matters would have appeared to the claimants. Even though the judge found the role objectively suitable and the claimants' perceptions of loss of status to be objectively groundless, he concluded those perceptions were not groundless from the claimants' point of view and so their refusals were not unreasonable. The EAT found no error of law and dismissed the appeal.

Appeal dismissed. The Employment Appeal Tribunal held that the Employment Tribunal had applied the correct legal test under section 141 Employment Rights Act 1996, had considered how the facts appeared to the claimants, and had permissibly concluded that, despite objective suitability, the claimants' subjective perceptions made their refusal not unreasonable.

Employment Tribunal judgment dismissing redundancy claims sent 17 July 2019. Appeal to the Employment Appeal Tribunal (Bourne J) allowed and remitted on 5 August 2021. Remitted to the Employment Tribunal which issued a further decision (judgment sent 22 March 2022). Appeal to the Employment Appeal Tribunal resulting in this judgment [2023] EAT 115 (hearing 15 August 2023; judgment 31 August 2023).