In this case, the EAT upheld a tribunal's decision that an employee had been fairly dismissed for redundancy, despite the employer's failure to offer her two specific roles which became available during the redundancy process. This was because the employee had made clear to the employer that she had no interest in roles of that type. However, the tribunal had failed to consider one aspect of the employee's disability discrimination claim.
Facts
Mrs Marshall was employed by East & North Hertfordshire NHS Trust (the Trust) as a Surgical Site Surveillance Nurse, a role which involved reviewing and auditing data relating to infections for particular surgical procedures and producing reports for feedback to relevant teams.
Following her dismissal for redundancy in January 2021, Mrs Marshall brought employment tribunal claims for unfair dismissal, direct disability discrimination, failure to make reasonable adjustments, discrimination arising from disability, harassment, victimisation and whistleblowing detriment. The tribunal dismissed all of her claims and Mrs Marshall appealed to the EAT in respect of two issues – namely, discrimination arising from disability and unfair dismissal.
Mrs Marshall's claims for discrimination arising from disability had mostly centred on how the Trust had treated her in relation to her sickness absence, much of which was attributable to her disability (anxiety and depression). However, one of the incidents Mrs Marshall relied on as a detriment was her manager's decision to send her home on sick leave on 21 September 2019 when she had raised her voice and engaged in erratic behaviour at work. Mrs Marshall claimed that her behaviour on that day arose from her disability. In its judgment, the employment tribunal found that the manager had acted based on advice from HR that the Trust had a duty of care to protect Mrs Marshall's mental health and concluded that there was no evidence to suggest that the manager's decision was based on her sickness absence record. The EAT held that the tribunal had wrongly failed to consider whether Mrs Marshall's conduct arose from her disability; whether the decision to send her home was because of that behaviour; and, if so, whether that was unfavourable treatment and whether that treatment was justified. This aspect of Mrs Marshall's claim was therefore remitted to the tribunal for reconsideration of those issues.
In relation to unfair dismissal, Mrs Marshall contended that the Trust should have offered her two Infection Protection and Control (IPC) Nurse roles which became available during the redundancy process, which she considered to be suitable alternative roles. However, the EAT upheld the tribunal's decision that the Trust's failure to offer Mrs Marshall those roles did not render her dismissal unfair.
The EAT confirmed that when an issue of whether there was an unreasonable failure to offer suitable alternative employment arises in the context of an allegedly unfair redundancy, the tribunal must assess whether the employer's actions fell within the range of reasonable responses. That requires consideration of what the employer knew at the material time. If, at that time, there were reasonable grounds for the employer to believe that offering a particular role would be futile because there was no chance the employee would accept it, that may be relevant to reasonableness and thus to the fairness of the dismissal. However, if such information only comes to light after the dismissal, it will not be relevant to the fairness of the dismissal but may be taken into account in any assessment of compensation.
Here, the alternative roles were ward-based and focused on proactively preventing infections. The tribunal had been entitled to conclude that they were "entirely different" from Mrs Marshall's role. The roles were advertised but Mrs Marshall had chosen not to apply for them. She had also chosen to disengage from the support offered by the Trust in seeking redeployment and had made clear to them that she did not want a ward-based role due to the ongoing Covid-19 pandemic. The tribunal had therefore not erred in concluding that Mrs Marshall's dismissal for redundancy was fair.
What does this mean for employers?
This case is helpful for employers as it confirms that, where it is reasonable for the employer to believe at the time of a redundancy process that there is no chance that a potentially redundant employee would accept a particular alternative role, the employer's failure to offer that role to the employee will not make their eventual redundancy dismissal unfair. That said, considering suitable alternative employment remains a fundamental aspect of the fairness of any redundancy dismissal and employers should not assume that an employee will not be interested in an available role without good evidence.
