Employment legal update #67 | November 2023
Our Employment & Immigration team brings its monthly review of new legislation, guidance and case law.
This months newsletter provides readers with new around:
- Increases to illegal working penalties
- Statement of Changes to the immigration rules
- National Minimum Wage
- Treaty on the Functioning of the European Union
- The Workers Act 2023
Case commentary topics this month are as follows:
- Holiday Pay
- Dismissal not unfair when termination date repeatedly extended
- Use of racially discriminatory word led to unfair dismissal
- Menopause was a disability: Equality Act section 15 claim
- Refusal to work weekends because of alleged childcare issues was not unfair dismissal
- Withholding redundancy payment for unreasonable refusal not unfair
Withholding redundancy payment for unreasonable refusal not unfair
The employment tribunal case of Love v M B Farm Produce Ltd looks at the statutory entitlement, which is not often exercised by employers, of withholding a statutory redundancy payment in the face of an unreasonable refusal by an employee of alternative employment which, if accepted, would negate their termination and the employer’s obligation to pay a redundancy payment. It held that entitlement to a statutory redundancy payment is not reinstated where an employee changes their mind after previously unreasonably refusing an offer of suitable alternative employment in a redundancy situation.
The farm shop at which the claimant worked faced closure and she was put at risk of redundancy. She was offered an alternative role at a different shop subject to a trial period. However she was concerned about driving, not being a confident driver, and so her employer offered to pay her reasonable mileage and fuel expenses and said she would not be expected to drive in bad weather conditions if this proved risky. Notwithstanding all these points, she still rejected the offer.
The employer considered the offer to be suitable and her refusal unreasonable, and so, as it was entitled to do under the legislation, informed her that she would not receive a statutory redundancy payment. The claimant then asked to meet with her employer and expressed interest in at least undertaking a trial period in the role. However, her employer refused and instead confirmed her redundancy and lack of entitlement to a redundancy payment.
When she brought a claim for a statutory redundancy payment the tribunal found that the role offered was suitable and her refusal was unreasonable; therefore the withholding of the statutory redundancy payment was valid. It commented that section 141 of the Employment Rights Act 1996, which deals with the withholding of the statutory redundancy payment in these circumstances, does not envisage an employee changing their mind, and there would not appear to be any case law on this matter. As such, the words of the statute were applied to find that the payment is lost if a suitable position has been offered and it has been unreasonably refused. Even though the claimant had reflected on her decision and tried to change her mind, the employment judge found nothing to convince him that she would be entitled to the redundancy payment.
However, her claim of unfair dismissal succeeded on the basis that it was found not to be reasonable for her employer to refuse to allow her to commence the trial period and instead to confirm her redundancy. At the time she met to discuss the role, it was still vacant, she was a long serving employee and she was at risk of redundancy; therefore the tribunal felt that she should have been allowed to trial the position.