Being made redundant is an inherently stressful experience. It is rarely just about the loss of a paycheque. It is about the loss of professional stability, the disruption of your daily routine, and the sudden uncertainty regarding your future. When you are told that your role is no longer required, it is natural to look around the office and wonder why your employer did not simply move you to another department.
At Blackstone Solicitors, we frequently speak with clients who feel that their redundancy was handled callously. They feel that their employer made no effort to retain them, even when other vacancies existed within the organisation. The question we hear most often is: “Can I claim unfair dismissal because I wasn’t offered a suitable alternative role?”
The short answer is that a failure to offer a suitable alternative role can indeed be a critical factor in a successful unfair dismissal claim, but the law is nuanced. It is not an automatic “yes.” To understand your position, you must look at what constitutes a reasonable process and how the law defines “suitability.”
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The Legal Duty to Search for Alternative Work
In the eyes of the law, a fair redundancy process is not merely about selecting people for exit. It is about mitigation. An employer is expected to act as a “reasonable employer” would in the circumstances. This includes an active duty to explore ways to avoid redundancy entirely.
While there is no legal obligation for an employer to create a new role for you, there is a legal obligation to search for one that already exists or is about to become vacant. If your employer has vacancies elsewhere in the business and they do not consider you for them, they are failing in their duty to act reasonably.
If the employer does not look for alternative roles, or if they look but act in a way that is clearly exclusionary, they risk making the subsequent dismissal unfair. The Employment Tribunal will look at whether the employer’s decision to dismiss you was a last resort. If they had a vacancy that you could have filled, and they gave it to an external candidate instead of you, that is a glaring indicator of an unfair process.
What Constitutes a “Suitable Alternative Role”?
This is where the law becomes highly subjective and fact-specific. A role is generally considered a “suitable alternative” if the work is not substantially different from your previous post and if the terms and conditions are not substantially less favourable.
When an Employment Tribunal evaluates whether a role was “suitable,” they consider several objective factors:
- The nature of the work: Does the role require a skill set you possess?
- The status and seniority: Is it a significant demotion, or is it comparable to your previous level?
- The pay and benefits: Does the salary match your previous earnings, or is it a drastic reduction?
- The location: Is the new office in a place you can reasonably commute to, or does it add two hours to your daily travel time?
- The terms and conditions: Are the hours, pension benefits, and holiday entitlements similar?
If the employer has a role that fits these criteria and they fail to offer it to you, their failure to act is highly relevant. However, if the only available role is a low-paid, part-time position when you were previously a full-time senior executive, that role is likely not “suitable.” In that scenario, the employer’s failure to offer it to you would not render your dismissal unfair.
The Connection to Unfair Dismissal
It is essential to understand that failing to offer a suitable alternative role does not automatically make a dismissal “unfair” in the sense that you win by default. Rather, it is evidence of a flawed process.
Employment law requires a fair procedure. A fair procedure includes consultation, fair selection criteria, and a genuine attempt to redeploy. If an employer completely ignores the possibility of redeployment, they have failed to follow a fair procedure. This procedural failing is usually enough to lead an Employment Tribunal to find that the dismissal was unfair.
However, even if the process was unfair, the Tribunal will also consider if the dismissal would have happened anyway. If the employer can prove that even if they had offered you the role, you would have been an unsuitable candidate, or that there were no roles available at all, the compensation awarded may be reduced. This is known as a “Polkey” deduction.
When Is It Reasonable to Not Offer a Role?
There are times when an employer is perfectly within their rights not to offer you a role. If you are clearly unqualified for the available vacancies, you cannot expect to be placed in them.
For example, if you are an accountant and the only vacancy in the company is for a specialist software engineer, the employer is not obliged to offer you that role. They are not required to provide intensive, long-term training to transform your career. They are only required to offer roles that you could reasonably perform with a manageable amount of instruction.
Furthermore, if the employer has a large number of employees at risk and a small number of vacancies, they are entitled to run a competitive interview process. They can select the best candidate for the available roles. As long as the process for selecting that candidate is transparent, objective, and fair, you cannot claim unfair dismissal simply because you lost out to a colleague in a competitive interview.
The Importance of the Paper Trail
If you believe you have been unfairly dismissed because you were denied an alternative role, your case will rely almost entirely on evidence. Employers rarely admit, “We didn’t offer you the role because we didn’t like you.” They will almost always claim that “no suitable roles were available.”
To challenge this, you need to be observant during the redundancy process:
- Did you receive information about vacancies?
- Were there internal job boards or newsletters that you were prevented from accessing?
- Did you express an interest in other roles, and were you ignored?
- Is the company hiring new people for roles that you could have performed during the same time they were making you redundant?
If you have evidence – such as emails, job advertisements, or notes from consultation meetings – showing that the company was recruiting while you were being exited, you have a strong starting point for your claim.
The Role of the “Trial Period”
It is worth noting that if an employer does offer you an alternative role, you are entitled to a statutory trial period of four weeks. This is a vital protection. It allows you to test the new role to see if it is truly suitable.
If you refuse an alternative role without a trial period, the employer may argue that you have unreasonably refused an offer of suitable employment. This could disqualify you from receiving statutory redundancy pay. Always ensure that if you are offered a new role, you ask for the statutory trial period. This demonstrates your willingness to engage with the redeployment process, which strengthens your position should you eventually need to claim for unfair dismissal.
Proving the Case for Unfair Dismissal
To build a case, you must show that the employer’s conduct fell outside the range of reasonable responses. This is the legal test applied by Employment Tribunals.
Ask yourself the following:
- Did the employer tell me about all vacancies?
- Were the vacancies genuinely “unsuitable,” or was that just an excuse?
- Did the employer give me a fair chance to apply for or discuss these roles?
If the answer to any of these is “no,” you should document it immediately. If you have been dismissed, you generally have three months less one day to initiate the Early Conciliation process through ACAS. This is a mandatory step before you can file a claim at an Employment Tribunal.
Why Blackstone Solicitors Can Help
At Blackstone Solicitors, we understand that redundancy often feels like a door being slammed shut. When you see your employer moving others around the building while you are being shown the exit, the frustration is immense. We act for employees across England and Wales who are challenging the fairness of their redundancy processes.
We can help you determine whether the employer’s failure to offer you a role crosses the line into unfair dismissal. We do not just look at the outcome; we analyse the entire process. We look for the missed opportunities, the lack of transparency, and the procedural failures that suggest your redundancy was not the “last resort” it should have been.
We offer clear, strategic advice that helps you decide whether to pursue a settlement agreement or take your claim to an Employment Tribunal. We understand the high stakes involved in these claims and the emotional toll they take on you and your family. Our goal is to ensure that your legal rights are protected and that, if you have been treated unfairly, you are properly compensated for the loss of your employment.
If you have been made redundant and you suspect that a suitable role was ignored or withheld from you, do not accept the situation at face value. A “genuine” redundancy must still be a fair one. Reach out to our team at Blackstone Solicitors today for a confidential discussion about your circumstances. We can help you identify the strengths and weaknesses of your position and provide the guidance you need to move forward.
How to Contact Our Employment Law Solicitors
It is important for you to be well informed about the issues and possible implications of Employment Law. However, expert legal support is crucial in terms of ensuring a positive outcome to your case.
To speak to our Employment law solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Please visit our website to see all the Employment Law services we offer: https://blackstonesolicitorsltd.co.uk/employment-law-services/
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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