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Farm shop worker who refused alternative offer of employment during redundancy period then changed her mind was unfairly dismissed

In Mrs D Love v M.B.Farm Produce Limited the Claimant worked at the Respondent’s farm shop in Faversham. The Respondent also had a shop at Stockbury. On 22 September 2022 Mr Brown, the owner, wrote to the Claimant to inform her that he was closing the shop and she was at risk of redundancy. He advised her that there was an alternative role at Stockbury.

In Mrs D Love v M.B.Farm Produce Limited the Claimant worked at the Respondent’s farm shop in Faversham. The Respondent also had a shop at Stockbury.

On 22 September 2022 Mr Brown, the owner, wrote to the Claimant to inform her that he was closing the shop and she was at risk of redundancy. He advised her that there was an alternative role at Stockbury.

The Claimant had expressed concern about driving to Stockbury in the snow and Mr Brown confirmed she would not be expected to travel if this would be too risky. He confirmed that he would pay her reasonable mileage and fuel expenses. He pointed out that the drive to Faversham was a greater distance and a longer commute.

He asked her to confirm whether she would accept the offer. The Claimant replied in a letter dated 4 October 2022 stating that she was not a confident driver and that the only journey she did, in thirty years of driving, was her journey to Faversham. She stated that she wished to accept a redundancy payment.

In an undated reply, the Respondent expressed the view that the offer of work at Stockbury was suitable, and that the Claimant was acting unreasonably in refusing it. As a result, she would not receive a statutory redundancy payment.

At some point after this, the Claimant asked Mr Brown in a WhatsApp message if she could have a meeting with him. Mr Brown met with her on 18 October. The Claimant did not want to the meeting recorded but Mr Brown arranged for a note-taker to be present. The notes record that the Claimant and Mr Brown discussed how the trial period would work. At the end of the meeting, the Claimant is recorded as saying: ‘will consider original offer with genuine interest. Needs points clarified and consider to give a go’. Mr Brown agreed to go away and get answers to some of the questions the Claimant had raised about her entitlements and respond to her.

It was Mr Brown’s evidence that after the Claimant had stated that she did not want to take the job at Stockbury, he made some enquiries by word of mouth and found someone who was interested in taking the job. He had made an offer to this person but had not heard back from them. Therefore, as at the date of the meeting on 18 October 2022 the job remained unfilled. Mr Brown did not tell the Claimant any of this at the meeting.

In a further undated letter Mr Brown wrote to the Claimant. He expressed surprise that she had wanted to revisit the question of the trial period. He stated that the Respondent had made alternative arrangements to fill the role. The Claimant wrote to Mr Brown on 28 October 2022 questioning the Respondent’s decision as (she stated) she had agreed to undergo the trial period for the new role. Mr Brown agrees that he never replied to this letter.

Employment Judge Siddall stated:

‘It is not the job of the tribunal to substitute their own decision for that made by an employer. The tribunal must decide instead if the decision to dismiss fell within the range of reasonable responses to the information available to them. In this case, as at 18 October 2022 the Respondent had an unfilled vacancy at the Stockbury shop which they had been keen for the Claimant to take.

She was a long-serving employee with 7 years’ service. Mr Brown considered that she had performed her job well. She was at risk of losing her job due to redundancy in circumstances where she would not receive a redundancy payment.

In all these circumstances I find it was not reasonable for the Respondent to refuse to allow the Claimant to commence the trial period, and to confirm to her that her dismissal on grounds of redundancy would take effect on 29 October 2022. 49.

I therefore find that the dismissal was unfair’.

The Claimant was awarded £7,209.50.

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