Employment Law Case Update: Dunne v Colin & Avril Ltd

In the case of Dunne v Colin & Avril Ltd the Employment Tribunal and Employment Appeal Tribunal were tasked with applying the two-fold test for suitability and unreasonable refusal of alternative employment disentitling an employee to a redundancy payment.

Mrs Dunne, the claimant, was a book-keeper on a 24 hour week contract. She had leukaemia and this was the reason she did a three day week. Her employment was transferred following liquidation of the company, and after a conversation with the person who was principle of both the new and old company she was initially offered a 16 hour per week contract. The claimant did not accept this, on financial grounds. She was then offered a 24 hour contract but it involved 8 hours of work in a warehouse. The claimant declined this offer also and was dismissed.

During the tribunal, it became clear that because of her medical condition, the claimant could not tolerate the cold environment in the warehouse. Warehouse members of staff often wore hats, fingerless gloves and coats. She had not mentioned this as a reason for not accepting the new role prior to being dismissed. She had stated the reason for not accepting the job was that the warehouse work was inconsistent with her book-keeping skills and experience. She did not feel this would be cost effective for the business.

The employment tribunal held that the claimant’s dismissal for redundancy was fair. They concluded that the second job offer was substantially office based and her pay was to remain the same so the offer was suitable and her refusal to accept that offer was not reasonable. The claimant appealed.

The EAT allowed the appeal. It held that the onus was on the employer to show both suitability of the alternative employment and also whether the refusal by the employee was unreasonable. The EAT held that the fact the reason later relied on by the claimant in her ET1, witness statement and oral evidence was not raised prior to her dismissal did not mean it could be disregarded in deciding whether her refusal was unreasonable.

The questions of the redundancy payment entitlement and unfair dismissal were remitted to a fresh employment tribunal.

This case highlights the importance of employers being aware of, and taking into consideration in a redundancy situation, any ongoing medical conditions or disabilities that an employee may be suffering from.

ENDS

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