How-to guide: The duty to offer suitable alternative employment during a redundancy process (UK)

Introduction

This how-to guide provides guidance to in-house counsel, private practice lawyers and human resources professionals working in England, Wales and Scotland (GB) on how to comply with the duty to offer suitable alternative employment during a redundancy process. This guide does not apply to Northern Ireland, where employment law is devolved to the Northern Ireland Assembly.

This guide covers:

Overview of the duty to offer suitable alternative employment
Defining ‘suitable’ and ‘alternative’
Timing and method of offering alternative employment
The statutory trial period
Interaction with the consultation process
Practical tips for employers

This guide can be used in conjunction with Checklist: Conducting a redundancy exercise and How-to guides: How to establish a fair selection pool during a redundancy process and How to comply with legal requirements relating to selection criteria during a redundancy process.

Section 1 – Overview of the duty to offer suitable alternative employment

When an employer proposes dismissing employees by reason of redundancy, the law imposes a duty on it to consider alternatives to dismissal – including the obligation to offer any available suitable alternative employment.

The Employment Rights Act 1996 (ERA 1996) governs the duty to offer suitable alternative employment. Additional duties also arise under equality legislation, such as the Maternity and Parental Leave Regulations 1999, which enhance protections for those on family-related leave.

1.1 Overview of the statutory scheme

1.1.1 Legal basis

Section 141 ERA 1996 sets out the duty to offer suitable alternative employment during a redundancy process. It applies to employees who would qualify for a statutory redundancy payment (see 1.2 below).

When an employee’s role becomes redundant, and the employer (or an associated employer) makes an offer of alternative employment before the redundancy takes effect, the employee may lose their entitlement to a redundancy payment if the offer is unreasonably refused. There are two key elements:

the offer must be suitable; and
the refusal must be unreasonable in the circumstances.

Section 138 ERA 1996 sets out a four-week trial period for alternative roles. This provides a safety net if either the employer or employee is unsure whether the new role will work in practice. If the employee starts the new role and it proves unsuitable, they may still be treated as dismissed by reason of redundancy, and retain their redundancy pay.

The statutory scheme only applies where the offer is made before the employee’s original role ends. Offers made after termination of employment do not satisfy the requirements under section 141 ERA 1996 and will not prevent entitlement to redundancy pay.

The ERA 1996 also addresses offers made by ‘an associated employer’. This is relevant in group structures where a subsidiary or sister company may hold the alternative vacancy. The association must be legal, not merely operational, and will generally require common control or ownership under the definitions in section 231 ERA 1996. In group structures, therefore, employers must look beyond the immediate employer company to consider whether any associated employers have suitable vacancies. While the obligation to search is not unlimited, a narrow or superficial review of vacancies is likely to be open to challenge.

1.1.2 When does the duty arise?

The obligation to consider and offer suitable alternative employment arises at the point when the employer is contemplating dismissals by reason of redundancy and begins the formal consultation with affected employees.

The obligation links to the legal obligation to consult about ways to avoid redundancy. The duty to consider suitable alternative employment is not separate but is part of the redundancy consultation and decision-making process. Failing to consider available alternatives, or only doing so after decisions have effectively been made, can make a redundancy dismissal unfair. See Hendy Group Ltd v Daniel Kennedy [2024] EAT 106 where the Employment Appeal Tribunal (EAT) emphasised the requirement for employers to be pro-active in the search for alternative employment.

In practice, the search for alternatives should start when the employer has identified employees at risk of redundancy and before individual consultation begins. Employers will be expected to take reasonable steps to find roles that match the employee’s skills and experience. If a vacancy arises that could be a potential match, it should be offered promptly, with full details of the role and terms.

Where multiple redundant employees may be suitable for the same role, employers must consider how the allocation process will be handled. This will usually involve some form of recruitment process such as interviews. Unsuccessful candidates remain entitled to redundancy pay

The duty continues throughout the consultation period and up to the point of termination. Employers must be alert to new vacancies that arise during this window and consider whether they should be offered. If a new role becomes available during the employee’s notice period, and it would have been suitable, the employer may face criticism for failing to offer it.

Special care is required where an employee is absent – for example, on sick leave or maternity leave. The duty to offer suitable alternative employment does not lapse because the employee is out of sight. Employers must ensure those on leave are given the same access to information about available roles, and in some cases (such as maternity leave), enhanced protections will apply (see 1.3 below).

1.2 Who is covered?

The right to be offered suitable alternative employment primarily applies to employees who meet the eligibility requirements for statutory redundancy pay. That means the employee must:

have at least two years’ continuous employment at the termination of their employment; and
be dismissed wholly or mainly by reason of redundancy.

It is important to note that the obligation to offer alternative employment is not restricted to whether the employee is likely to accept it. The employer must make a reasonable effort to identify and offer roles, even if they think the employee is unlikely to accept them. Whether the role is ultimately taken up or refused – and whether that refusal is reasonable – is a separate question.

The obligation applies regardless of the employee’s current working arrangements. It includes part-time workers, employees on flexible arrangements and those absent due to sickness or leave. Exercise caution to ensure that these individuals are not overlooked when alternative roles are identified.

Fixed-term employees have redundancy protection in the same way as permanent staff, provided they meet the statutory length of service requirement.

1.3 Special protection for employees on family-related leave

The duty also includes employees on maternity leave, shared parental leave, or adoption

leave – and for these individuals, the obligation is enhanced. Regulation 10 of The Maternity and Parental Leave etc. Regulations 1999 requires the employer to offer a suitable alternative vacancy to an employee on maternity leave before it is offered to anyone else. That regulation overrides general selection principles and effectively creates a statutory right to be given priority access to a role. Failing to apply that protection correctly exposes the employer to automatic unfair dismissal claims and potentially unlawful discrimination claims.

Where Regulation 10 applies, the employee has a statutory right to be offered the suitable vacancy – not just considered for it – and must be given priority over any other potentially redundant employees. This right exists even if other employees are more qualified or available to start sooner.

The protection is automatic. The employee does not need to request it or invoke it in any way. The duty falls on the employer to identify that the employee is covered by Regulation 10 and to take steps to offer a suitable vacancy where one exists. The duty extends to roles with associated employers.

The EAT in Carnival v. Hunter [2024] EAT 167 held that, where there is a reduction from say 16 from 21 roles, there is no protection for pregnant employees; whereas if 21 positions are redundant and 16 new roles are created, then pregnant employees are protected. This means that it is only where there are alternative vacancies post-selection for redundancy that the priority rights apply. An employee in a protected period, who, following a lawful selection process, scores lower than others, does not have the right to retain their job over a higher-scoring colleague.

1.4 Practical application

In practice, employers should maintain a centralised record of employees who are at risk of redundancy and track any vacant roles that arise. As roles become available, they should be reviewed against the skills and availability of each individual. Proactive matching is essential, particularly for those absent from the workplace.

1.5 Consequences of failing to offer suitable alternative employment

One of the most common consequences of failing to offer suitable alternative employment is a finding of unfair dismissal. Under section 98(4) ERA 1996, a dismissal is unfair if the employer fails to act reasonably in all the circumstances. That includes how the redundancy process was carried out.

Employers are also at risk where an employee on maternity or shared parental leave (who has special protection as outlined at 1.3 above) is passed over for a role in favour of someone else.

Employers may also expose themselves to breach of contract claims if contractual redundancy terms exist and they fail to follow them. Many employers have enhanced redundancy policies that include requirements around alternative employment. Failing to follow internal policy may give rise to breach of contract claims in addition to statutory liability.

1.6 Impact on redundancy pay

Under section 141 ERA 1996, an employee may lose their right to a statutory redundancy payment if they unreasonably refuse an offer of suitable alternative employment that was made before the employee’s termination date.

Statutory redundancy pay is calculated based on age, length of service and weekly pay (currently capped at £700 per week as of April 2025). For a long-serving employee, the statutory payment can easily reach five figures. There is a government statutory redundancy calculator available at Calculate your statutory redundancy pay - GOV.UK.

Section 2 – Defining ‘suitable’ and ‘alternative’

The terms ‘suitable’ and ‘alternative’ are not defined in rigid terms by the legislation, and the question of whether a role qualifies as a suitable alternative depends on the specific facts of each case. This involves both objective elements (such as duties, pay, location and hours) and subjective factors relevant to the individual employee.

If the role is not suitable, there is no obligation to offer it. If it is suitable and the employee unreasonably refuses it, redundancy pay may be lost.

2.1 What makes a role ‘suitable’?

Suitability is assessed in two stages. First, is the alternative job objectively suitable when compared to the old one? Second, if it is, was the employee’s refusal of it reasonable in the circumstances? These are fact-specific assessments.

2.1.1 Assessing whether the role is objectively suitable

The first question is whether the new role is objectively suitable. That means considering the core features of the job: the nature of the work, the terms of employment and the level of responsibility. Employers should compare the old and new roles carefully and be prepared to justify why they believe the job is suitable.

Employers should consider the factors set out in the paragraphs below.

Skills and experience

The new role should be one that the employee is reasonably qualified to do. It does not have to be identical to the old role or require the same duties, but it must be within the person’s capability. Do not assume an employee does not have a qualification or skills. If significant retraining would be needed, the role is less likely to be seen as suitable – unless the employer offers support or a longer trial period.

Terms and conditions

This includes pay, hours, holiday, benefits and other contractual entitlements. A role that involves a significant drop in salary, reduction in benefits or increased working hours is unlikely to be considered suitable. However, small differences may not be enough to make the job unsuitable, particularly if the overall package is broadly similar.

Employers should not assume a role is unsuitable because it has slightly less favourable terms. Tribunals look at the package as a whole. For example, if the base salary is slightly lower but hours are reduced or responsibilities are lighter, the role may still be objectively suitable.

Status and seniority

A role that represents a significant demotion may not be suitable, even if pay is preserved. The question is whether the role reflects the same level of responsibility and recognition. For example, offering a senior manager an administrative post with no line management duties would rarely be suitable. However, if the change in status is modest – such as moving from Head of Department to Team Leader – and terms are comparable, the role may still qualify.

It is not necessary for the new role to be a perfect match. What matters is whether the differences are material, and whether they make the new role substantially different in a way that would matter to a reasonable employee.

Employers should also avoid relying solely on job titles when assessing suitability. The same title may cover very different responsibilities in different teams. Equally, a different title may mask a role that is functionally very similar.

Location

A change of work location can have a major impact on suitability. Travel time, cost and the employee’s personal circumstances (such as childcare or health conditions) all factor in. A new location that adds a substantial commute or forces relocation is unlikely to be suitable unless expressly agreed.

Employers should assess the practical impact. For example, a change from a 30-minute commute to a 90-minute journey each way may be excessive, even if the distance is not significant. If relocation assistance is offered, it may help justify suitability – but the employee’s reasons for objecting will still be considered.

It is also important to consider contractual mobility clauses. If the contract of employment allows for location changes, the employer may argue that a different site falls within the scope of the original job. But this only affects the employer’s right to move the employee – it does not override the suitability test for redundancy purposes.

Working hours

A substantial increase in hours, change in shift patterns or introduction of night work may make a role unsuitable. This is especially relevant for employees with caring responsibilities, health conditions or part-time arrangements.

Minor changes – such as moving from 35 to 37.5 hours per week – may not be enough to make a role unsuitable. But a shift from a regular Monday to Friday pattern to variable shift work will often be more problematic.

Employers must also consider flexible working arrangements, particularly where they were agreed under a formal request. Offering a role with less flexibility may undermine suitability.

2.1.2 Documentation

Tribunals place weight on what was actually offered to the employee. Employers should set out clearly in writing what the new role involves: job title, duties, reporting lines, salary, hours, location, benefits and whether it is permanent or temporary. If these points are unclear or not communicated properly, the tribunal may find that the employee was not given a fair opportunity to assess suitability.

Employers sometimes list all available vacancies without filtering for relevance. This is not compliant. The duty is not to hand over a list – it is to offer a role that constitutes a genuine alternative. This means roles should be actively identified and assessed by the employer before being proposed to the employee. It is the employer’s responsibility to show that the offer was made properly, for a position that the employee could reasonably be expected to take.

2.2 Temporary and fixed-term opportunities

Depending on the circumstances, a temporary or fixed-term role may be considered a genuine alternative – and the failure to offer it may make a dismissal unfair.

Employers should consider

how long the role is expected to last;
whether the employee would have time to mitigate further loss;
whether similar extensions to the fixed term or temporary contracts have happened before, as this may show a level of stability that could make the position more appealing to the employee being made redundant; and
the context – for example, an employee close to retirement might reasonably prefer a short role.

A temporary role (eg, covering a project, secondment or maternity leave) may also be a genuine alternative. Again, suitability depends on the role content, the likely duration and the employee’s circumstances.

Temporary roles may be particularly relevant where the employer anticipates further vacancies arising soon. For example, moving the employee into a short-term cover post may allow time to redeploy them elsewhere permanently. In those situations, it is sensible to set out the temporary nature of the work in writing and explain the employer’s intentions.

2.3 Assessing the reasonableness of refusal by employee

Even when a role is objectively suitable, an employee who refuses it may still be entitled to a redundancy payment – but only if their refusal is reasonable. This is a key part of section 141 of the ERA 1996.

2.3.1 The legal test

The legislation does not define ‘unreasonable refusal’, but tribunals have developed a well-established approach. The reasonableness test is not purely objective – it considers both the nature of the job and the employee’s personal circumstances. The question is whether a reasonable employee in the position of the potentially redundant employee could reasonably refuse the offer.

Reasonableness is judged by reference to the individual employee, not the average worker, nor the tribunal’s view. Tribunals take into account the employee’s health, family circumstances, commuting time, flexibility needs and experience.

Employers should not assume that a refusal is unreasonable just because the role looked suitable on paper. They should ask the employee why they are declining, listen to the reasons and respond if possible. Where objections seem unclear or speculative, the employer should follow up to understand whether the employee has misunderstood the role or needs more information.

2.3.2 Unreasonable refusal

Where refusal seems unreasonable, the employer should:

confirm the suitability of the role (documenting duties, pay, location, etc);
record the refusal and reasons given by the employee;
note what follow-up was done to clarify or resolve concerns; and
take advice before deciding to withhold redundancy pay.

Where a refusal is based on genuine and documented concerns – such as health, domestic arrangements or incompatibility with experience – it is safer to treat the employee as having reasonably refused, and to make a redundancy payment accordingly.

Section 3 – Timing and method of offering alternative employment

Offers of alternative employment must be made before the employee’s dismissal takes effect, and in a way that gives the employee a fair opportunity to consider them. Any offer should not be vague or informal – it should clearly set out the relevant terms, be made in writing and include enough detail for the employee to make an informed decision.

3.1 When must the offer be made?

Section 141(2) ERA 1996 makes clear that the offer of suitable alternative employment must be made before the employment under the previous contract ends. If the offer is made after the termination date, it will not affect the employee’s entitlement to a redundancy payment. ‘Termination’ in this context refers to the date on which the employee’s contract ends – not the date notice is given.

3.2 Allowing time for consideration

The employee must be given a fair opportunity to consider the offer. This means the offer must be clear, complete and provided in good time.

There is no statutory minimum period for considering an offer, but it must be reasonable. What is ‘reasonable’ depends on the complexity of the role, the amount of change involved and the employee’s circumstances. The more complete and clear the offer, the quicker the employee can decide.

If an employee refuses an offer and later argues they did not have enough time to consider it, tribunals will examine the circumstances. If the offer was last minute, unclear or rushed, the refusal may be treated as reasonable – meaning the employee would still be entitled to redundancy pay. But if the employer gave a clear offer with adequate time and support, the refusal is more likely to be treated as unreasonable.

Employees on leave (eg, sick leave or maternity leave) must still be given a fair opportunity to consider roles. Employers should avoid relying solely on email or assuming no response means refusal. If the employee is difficult to reach, the employer should use multiple channels and allow more time. Any failure to do so may amount to discrimination or procedural unfairness.

3.3 How should the offer be communicated?

A poorly handled offer – even if it arrives on time and relates to a suitable role – can still be challenged if it is unclear, incomplete or not properly explained.

While there is no legal requirement for a written offer, in practice it is essential, as it gives the employee a proper basis to evaluate the role and decide whether to accept it.

The written communication should confirm:

the job title and who the employee would report to;
the key duties and responsibilities;
the place of work (including hybrid or remote arrangements if applicable);
the terms and conditions, including salary, hours of work and benefits;
the type of contract (permanent, fixed-term, temporary);
whether there will be a probation period or trial period;
the proposed start date;
how long the employee has to consider the offer;
who to contact with questions.

Employers should also attach the full job description and relevant contract terms or make them accessible. Vague summaries or incomplete offers may lead a tribunal to conclude that the employee was not given a real opportunity to assess the role.

Employers should retain a copy of the communication and ideally get confirmation that the employee has received it. Delivery by email is usually sufficient, but it must be sent to an address the employee has access to and is known to monitor.

The employee also needs a chance to discuss the role, raise concerns and get clarification before making a decision. If this opportunity is not provided, any refusal is more likely to be treated as reasonable – even if the role looked suitable on paper.

The initial offer should include an invitation to discuss the role, either with HR, the line manager, or both. A follow-up meeting should be offered if the employee has questions or seems unsure. What matters is that there is a meaningful two-way conversation. Keep a note of the discussion.

If the employee requests more time to consider the offer, and there is no pressing operational reason to deny it, the employer should normally agree. This is especially true where the role represents a significant change or where the employee is on leave. Unreasonably short deadlines may be seen as evidence that the employer is not acting fairly.

Some employees will want to take advice from a trade union representative, legal adviser or family member before deciding whether to accept the offer. Employers should support this.

If a written offer is made and the employee does not reply, the employer should follow up. A single email or letter is not enough. Employers should ensure the employee received and understood the offer. Employers should avoid pressurising employees to accept an offer.

Section 4 – The statutory trial period

When an employee is offered a suitable alternative role during a redundancy process, they are entitled to a statutory trial period in the new role. This allows both the employee and the employer to assess whether the role is genuinely suitable in practice, without the employee automatically losing their redundancy rights.

4.1 Legal framework

Section 138 ERA 1996 provides a statutory trial period for employees offered suitable alternative employment in a redundancy situation. During this trial period, the employee’s continuity of employment is preserved, and they retain the right to a redundancy payment if the trial is unsuccessful.

4.1.1 Length of trial period

The statutory trial period is four calendar weeks. This is a fixed period and cannot be shortened. The only way to extend it is by written agreement for retraining (see section 4.2 below).

The trial period starts on the day the employee begins working in the new role. That means physically starting the new duties – not the day the offer is accepted nor the date the contract is signed. If the employee is on leave or delayed in starting for any reason, the clock does not begin until they start work in the alternative role.

The rule applies whether the new role is permanent, temporary or fixed term. If the offer was made before the old role ended, and the new job starts immediately after the old one finishes, the employee is entitled to the statutory trial period.

Employers should always confirm in writing:

the start date of the new role;
that it is a trial period under section 138 ERA 1996;
that the trial period is four weeks from the new role’s start date; and
the options at the end of the period.

4.1.2 What happens if the trial fails?

If the employee or the employer decides during the trial period that the new job is not suitable, the original redundancy dismissal can stand provided that:

the decision is made within the four-week period;
the role is unsuitable – either for the employee or the employer;
the employee is not dismissed for another reason during the trial (eg, capability or misconduct); and
the trial relates to a role offered as suitable alternative employment before the termination date of the old role.

If the employee finds the role unsuitable, they should communicate this clearly and ideally in writing. A vague or delayed resignation after four weeks may lead to a dispute.

If the employer concludes that the employee is not performing in the new role, or that the job is no longer available, they may end the trial period early. In that case, the dismissal will be treated as a redundancy if the reason is that the job was not suitable. However, if the dismissal is for some other reason (eg, misconduct), redundancy pay may not be due. Employers must therefore be clear about why a trial is ending.

Sometimes, the employer believes the role is suitable and refuses to pay redundancy, while the employee argues the role was unsuitable. Tribunals will assess the facts carefully, looking at:

the job content and how it compares with the old role;
any problems raised during the trial period;
whether concerns were addressed or ignored; and
the conduct of both parties during the trial.

If the employee continues working in the new role after the four-week period, they are usually deemed to have accepted the new role. At that point, redundancy pay is lost, even if the job later proves unsuitable. The only exception is where a longer trial period was formally agreed in writing under section 138(3) ERA 1996.

4.2 Extension of a trial period

Section 138(3) ERA 1996 permits an extension to the four-week trial period to enable the employee to be retrained for the new role.

In these cases, the employer and employee can agree to extend the statutory trial beyond four weeks, provided the extension:

is agreed in advance;
is confirmed in writing;
specifies the purpose and duration of the extension; and
does not exceed what is reasonably necessary for the training or adjustment.

There is no statutory limit on how long the extension can be, but it must be reasonable in the context of the training.

Section 5 – Interaction with the consultation process

The duty to offer suitable alternative employment is a core part of any fair redundancy consultation. Employers are expected to explore alternatives to dismissal during the consultation period, and suitable vacancies must be raised as early as possible.

5.1 Individual consultation

Employers should begin the search for alternative roles before the first consultation meeting, and certainly no later than the early stages of consultation. By the time the first individual consultation meeting takes place, the employer should already have a list of any potentially suitable vacancies.

5.2 Collective consultation

Where an employer proposes to dismiss 20 or more employees at one establishment within a 90-day period, the duty to consult collectively under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) applies (see Quick view: Collective redundancy consultation).

Alternative employment falls directly within this duty. Employers must give representatives information about available vacancies, consider proposals for redeployment and allow input on how roles should be matched or allocated.

It is common for collective consultation processes to include a vacancy matrix – a document showing all current and anticipated roles, location, contract type and any criteria being applied. This helps ensure transparency and gives representatives the opportunity to propose suitable matches.

Section 6 – Practical tips for employers

Redundancy processes are often scrutinised months or years later by an employment tribunal, and all relevant documentation will be considered and examined. The guidance below will help employers to prepare for this scenario.

6.1 Planning ahead: tracking roles and employees

At the start of any redundancy process, employers should carry out a mapping exercise of all at-risk employees (including fixed-term staff and secondees), together with current vacancies, potential upcoming roles (eg, from planned exits or organisational changes).

Roles should be cross-referenced against at-risk employees, assessing whether there is a reasonable skills match. The employer is not expected to create jobs, but it must consider actual and impending vacancies across the organisation.

6.2 Making and recording offers

When a potentially suitable role is identified, make sure it is:

raised during consultation;
set out clearly in writing;
supported by full job details, location, hours and pay;
offered before dismissal takes effect; and
the employee has a reasonable period to consider it.

6.3 Evidencing discussions and decisions

The key question in tribunal is always: ‘What can the employer show?’. Not what it intended or assumed, but what it can prove.

Employers need to be able to produce records of:

what was offered;
what the employee said;
why the role was or was not taken up;
why any refusal was (or was not) treated as reasonable; and
how other staff were treated in similar circumstances.

6.4 Evidence to retain

Below is a list of physical and documentary evidence that employers should keep. Each item should be retained securely, dated and linked to the specific redundancy process in question.

Evidence	Value
Vacancy logs: internal spreadsheets or HR system exports showing all vacancies open or arising during the redundancy process.	Proves the employer had oversight of available roles and considered alternatives.
Consultation notes (ideally signed or agreed by the employee) from meetings where redeployment was discussed.	Shows that suitable alternatives were actively explored, not ignored.
Role matching matrices: internal documents showing how each employee was assessed against vacant roles.	Demonstrates that decisions were systematic and evidence-based, not arbitrary.
Offer letters: written offers of alternative employment, including job title, location, pay, hours and trial-period terms.	Establishes that valid offers were made before dismissal, satisfying section 141 ERA 1996 requirements.
Employee responses: email replies, meeting notes or signed forms confirming acceptance or rejection of alternative roles.	Useful for showing the employee was informed, consulted and made their decision freely.
Trial period documents: letters or forms confirming the start and end date of a trial period, ideally signed by both parties.	Required for applying the rules under section 138 ERA 1996, and relevant to redundancy pay decisions.
Selection criteria and redeployment records: where multiple employees are competing for the same alternative role, notes of the process used (eg, interview scoring, shortlisting).	Protects against allegations of bias or inconsistency.
Template scripts and forms: internal scripts used in meetings and any template redeployment forms completed.	Shows procedural consistency, especially useful if challenged by multiple employees.