In Dunne v Colin & Avril Ltd, Dunne (D) worked a 24-hour week as a book-keeper. Following a restructure, D was made redundant after she decided not to accept an alternative job working 24 hours a week comprising of 16 hours’ book-keeping and 8 hours working in the warehouse.  In the warehouse members of staff often wore hats, fingerless gloves and coats; because of her leukaemia, D could not tolerate this cold environment. She declined the alternative role and was dismissed.

An ET found there was a redundancy situation but D had unreasonably refused an offer of suitable alternative employment, and so was not entitled to a redundancy payment, and the dismissal was fair.  At the core of the ET’s reasoning was the finding that the alternative job offer meant that D would be office based for a large amount of time, her pay was going to remain exactly the same and this resulted “in the inevitable conclusion that the job offer by the respondent was a suitable one and the other inevitable conclusion is that the refusal to accept that offer was not reasonable”.

The EAT upheld D’s appeal. The EAT’s decision in Bird v Stoke-on-Trent Primary Care Trust UKEAT/0074/11 applies in such situations. The ET must first decide the objective question: was the alternative employment suitable?  If so, it must decide the subjective question: was this Claimant’s refusal of the offer of suitable alternative employment unreasonable?  The onus lies on the employer to show both suitability and unreasonable refusal.

In this case, the ET did not address the difference between the suitability and unreasonable questions as required by case law. In failing to do so, the ET erred by combining the suitability and unreasonable elements into one. The finding that an alternative job is suitable does not lead to an inevitable conclusion that a refusal is unreasonable.  Reasonableness would need to involve an assessment of D’s subjective reason or reasons for refusing the final offer of 16 hours of book-keeping and 8 hours of warehouse work, but that had not taken place. The questions of redundancy payment entitlement and unfair dismissal were therefore remitted to a fresh ET for determination.

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