A farm shop worker who refused an alternative offer of employment during her redundancy period and then changed her mind was unfairly dismissed, a tribunal has ruled.
The Croydon tribunal found that Mrs D Love – who worked for MB Farm Produce (MBFP) for seven years and was considered a “good worker” – refused an offer to work in its Stockbury shop as she is an anxious driver.
However, she changed her mind in her notice period and attempted to accept the role on a trial basis. But Mr Brown, her employer, refused to let her commence the role on that basis, which was not in the range of reasonable responses, the tribunal ruled.
Background
The tribunal heard that Love – who was employed by MBFP in November 2015 until her redundancy on 29 October 2022 – was informed that the owner was going to close the Faversham shop in which she worked on 22 September 2022.
Brown said it “was not making money” and told Love she was at risk of redundancy, but offered her an alternative role at the Stockbury shop. Love said she was “worried" about driving to an unfamiliar place.
On 23 September, it was confirmed by letter that Love had been selected for redundancy and offered the role at Stockbury, with a start date of 31 October and a trial period. It also said if she did not accept the offer, she would lose her right to a statutory redundancy payment.
Brown told the tribunal that Love was a “good worker” and that he was “keen” for her to continue working for the business.
On 30 September, Brown followed up with Love about her concerns about travelling to Stockbury and driving in the snow. He confirmed that she would not be expected to travel if it was “too risky” and confirmed he would pay reasonable mileage and fuel expenses, asking her to confirm if she would accept the offer.
On 4 October, Love told Brown she was not a “confident driver” and had only ever made the journey to Faversham in her “30 years of driving” and wished to accept a redundancy payment. But Brown refused, as he felt Love was acting unreasonably in refusing the offer.
The pair had a meeting on 18 October about the role and how the trial period would work, which the notes say ended with Love considering “the original offer with genuine interest” but she would need some clarification, which Brown said he would provide soon.
However, Brown told the tribunal that when Love refused the job offer he “made some enquiries” and found someone interested in taking the role – but he did not tell Love that.
In an undated letter to Love, Brown “expressed surprise” that she wanted to revisit the trial period and said he believed she had declined the offer of a suitable alternative role, and confirmed her last day would be 29 October. He also said he made “alternative arrangements” to fill the role.
Love responded to Brown on 28 October questioning his decision as she had agreed to the trial period, but Brown never responded, the tribunal was told.
Judge’s comments
Employment judge Siddall ruled that while Love had explained her anxiety around driving, an acceptable offer of alternative employment was offered and unreasonably refused by Love.
However, Siddall also found that once Love realised she would lose her redundancy payment and the opportunity to work at Stockbury, it led her to “reflect upon her situation” and she sought a meeting with Brown. “In that meeting she clearly indicates that she is prepared to consider taking the job on a trial basis. During this meeting Brown said nothing about having already contacted someone else,” said Siddall, adding that, on the day of that meeting, the post remained unfilled and Brown was “keen” to move her over to the other site.
“I find that on the 18 October she indicated a clear willingness to take the job at Stockbury on a trial basis,” Siddall continued. “Moreover, Brown did not say anything to her to suggest that this opportunity was now closed to her, and that someone else might be interested in it. In fact, he stated that he would go away to obtain answers to her questions about how the trial period would work.”
It was ruled that the decision to dismiss Love was unfair and she was awarded £7,209.50
Employment lawyer reaction
The case serves as a reminder that the obligation to consult and ensure options and alternatives are “fully explored” continues when notice of redundancy has been served and an employee is in their notice period, explained Andrew Willis, associate director of legal at Croner.
“Here, consultation had taken place and an offer of suitable alternative employment had been made to the claimant, which was refused and as such no redundancy payment was made,” he said.
“During the notice period, however, the claimant changed her mind and asked to trial the alternative role. The request was ignored by the respondent and this is where they were found to have acted unfairly.”
Willis added that employers needed to be “mindful that the duty to consult and consider all options and alternative employment continues all the way through an employee’s notice period”.