There were no objective selection criteria for the vacant promotional post

There were no objective selection criteria for the

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which her manager did not consider she was qualified. There were no objective selection criteria for the vacant promotional post which was open to outside applicants. The ET was entitled to find on the facts it found that the Claimant could not complain she had not been
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fairly considered for the promotion as she had been offered suitable alternative employment elsewhere in the organisation. It was irrelevant that the parties had subsequently agreed, so as to enable the claimant to receive a redundancy package that the post originally deemed suitable was no longer suitable alternative employment. The ET was bound to consider the question objectively and clearly concluded that she had been offered suitable alternative employment. 51. In Hachette Filipacchi UK Ltd v Johnson [2006] IDS ELB 804, the Court held that where an employer had failed to consult with an employee who had recently moved to a commercially risky and potentially redundant role about the prospect of returning to her initial role, was not necessarily unfair. 52. Where a job vacancy comes up after the dismissal of an employee, there is no obligation for the dismissed employee to be offered the job: Octavius Atkinson & Sons Ltd v Morris [1989] IRLR 158. However if the job is offered and rejected, this will be a powerful argument for failure to mitigate and will limit the losses recoverable by the employee. 53. In that case a dismissal was held not to be unfair in circumstances where alternative employment became available very shortly after a summary dismissal but was not offered to the employee. Since it was not available at the time of dismissal itself, the failure to offer it could not affect the fairness of the dismissal. The case itself turned on the precise moment in the day when the dismissal was effected, the Court of Appeal holding that it was the moment when the summary dismissal was effected. 54. Where an employer could make an offer of alternative employment to the employee, but the offer is made on an unreasonable basis, that is capable of rendering an otherwise fair dismissal unfair (see Elliot v Richard Stump Ltd [1987] IRLR 215. 55. In that case the employer purported to refuse to permit the employee to work the new job for a trial period before finally accepting it, notwithstanding that s 138 of the ERtsA expressly confers such a right. Loss of Right to Redundancy Payment 56. Where an employee who is dismissed by reason of redundancy unreasonably refuses an offer of suitable alternative employment, he loses his right to a redundancy payment. In relation to this aspect, the offer:
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must be made by his original employer or an associated employer; must be made before the ending of his employment under his previous contract; may be oral or in writing; must take effect either immediately on the ending of the contract or after an interval of not more than four weeks thereafter; either o on the same terms and conditions as the previous contract; o suitable employment in relation to the employee.
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  • Fall '16
  • Farah Nabilla
  • Tribunal

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