Closures and reorganisations

To transfer or not

The Transfer of Undertakings (Protection of Employment) (TUPE) Regulations are becoming increasingly important as schools are reorganised. The principle is that where one organisation takes on another, the employees transfer automatically with their terms and conditions intact. The employee, though, can refuse to transfer.

In an intriguing case, the Employment Appeal Tribunal (EAT) had to consider the question of whether an employee who had stated her refusal to transfer had nevertheless transferred by virtue of working for six weeks to help with transition.

The decision of the EAT - which may become relevant to school staff asked to help with transition - was that she did transfer, despite her protests, and that the date of transfer was not at the end of the additional six weeks but at the date when the enterprise transferred.

The fact that she continued to work had to be construed as a transfer.

Offers of suitable work

Where there is restructuring involving redundancy, the rule is that an employer can avoid redundancy payment if suitable alternative work is offered and the employee unreasonably refuses.

The Employment Appeal Tribunal has clarified what happens if the employee refuses the offer of alternate employment. There is a two stage test. First, is the offered job suitable? This is an objective test. Then, is the refusal reasonable? This is a subjective test: it is the feelings of the employee about the change that are the deciding factor.

A job might be considered to be suitable but the refusal may still be reasonable. The onus is on the employer to prove that the employee's feelings about the new job were unreasonable.

In practice most schools or colleges making someone redundant will not be able to offer the chance of an alternative post. However, this case does show that employees have a good chance of winning the argument if they don't want to accept the post.

Appeal awards depend on fair process

Redundancy is governed by rules, one of which is that there must be the facility for an appeal. If there is no option for appeal, the employee has been unfairly dismissed and is entitled to an award. However, all awards are subject to the principle that where the outcome would have been the same even if a fair process had been followed, the award may be reduced by an appropriate amount.

For example, the EAT has recently upheld the decision of an Employment Tribunal that the award should be reduced by 100 per cent where an employee would have had no case for appeal, even if an appeal hearing had taken place.

This principle applies widely where there are procedural rules, but it should not be assumed that a school or college can get away with ignoring the rules. The argument that 'it would have made no difference' will not always succeed or eliminate an award.