Mid and South Essex NHS Foundation Trust v Stevenson & Ors [2023] EAT 115

Appeal over whether the ET had erred in concluding the claimants refusal of alternative "suitable employment” in a redundancy process was not unreasonable.

The claimants had each been employed in a role with the title Head of Human Resources but the roles were made redundant following a restructure. They were offered alternative employment as Senior HR Lead but refused. The respondent refused redundancy payments contending that they had unreasonably refused offers of suitable employment. The claims in the ET were initially refused but on appeal to the EAT the issues of suitable employment and reasonableness of refusal were remitted to the same judge. This time he reaffirmed the alternative positions were suitable but the claimants' refusal to accept the posts was not unreasonable as their perception they would lack autonomy in the new roles was not groundless.

HHJ Tayler notes at [5] that, following Bird v Stoke, the issue of suitability and reasonableness of refusal are distinct but related. He also notes at [29], in response to the respondents' submission the EJ had failed to consider the facts behind the claimants' perceptions of the new roles, there

"is no requirement that an Employment Judge in every case specifically asks how the facts “ought to have appeared” to the claimants. Those words are guidance that assists in applying the statutory test of whether the role was unreasonably refused, but do not themselves set out a statutory test."

On this point the EJ had not erred, having used language from Bird, so the appeal was dismissed.


Published: 19/09/2023 10:10

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