Can Your Employer “Test The Market” To Fill A Vacant Role?

“We’re restructuring.”

It’s a phrase that you dread to hear as an employee. Its code for “You’re redundant”, you may think.

You may have the unfortunate privilege of hearing that announcement several times during your career – perhaps even with the same employer.

While it can be disconcerting to be part of a business that is restructuring, you should remember that just because the role you perform may no longer be needed by the business, that doesn’t necessarily mean that your employment will end.

You might end up performing a different role for your employer, in which case your employment would continue.

In fact, as I describe below, your employer is obliged to try and keep you employed if they can.

DUTY TO CONSIDER ALTERNATIVE ROLES

If your role is declared redundant, your employer must make an effort to identify whether there are any other roles within the business that you could perform.

If they fail to do that, the termination of your employment will not be justified. That is because they might have prevented your termination by offering you another role.

Of course, they are not obliged to create a new role just to keep you employed. That would probably defeat the purpose of the restructuring, which is often about saving costs and making the business more efficient.

When they do identify an available position that you could perform, they should at the very least discuss it with you.

WHEN YOUR EMPLOYER WANTS TO “TEST THE MARKET”

Let’s say your role is declared redundant and your employer has identified a vacant role that you might be able to perform. Must your employer simply give that role to you, no questions asked?

Sometimes employers are not satisfied with filling a role with internal candidates.

They may want to “go external” and “test the market” to see if they can attract any other applicants for the role and ensure that they find the best-qualified person.

Of course, they may be happy to invite you to apply for a vacant role. In that case they will likely promise to treat your application equally with the others that they receive from applicants outside the business.

After that process of receiving applications and conducting interviews, they may decide that you are the best-qualified person for the role after all. Or they may equally decide that someone else is better-qualified than you are and offer them the role instead.

IN SOME CASES, YOU MUST BE OFFERED THE ROLE

But is inviting you to apply and compete against external candidates, rather than offering you the role, a fair approach for the employer to take?

In recent years, the Employment Court has signalled that when your role is made redundant, you must be offered a vacant role if you can do the job, even if you may require some training for that new role.

In other words, in some cases it will not be appropriate for your employer to “test the market” and make you compete against external candidates. If you can do the job, that should be the end of the story. It would not be fair and reasonable for your employer to look elsewhere for better-qualified candidates.

This accords with the employer’s obligation to try and find alternative roles for you. They must strive to keep you as their employee if at all possible. After all, it’s not your fault that your role was deemed surplus to the needs of the business.

CAN YOU DO THE JOB?

The real questions then become:

  • Can you do the job without any training?
  • Alternatively, if you need some training to do the job, how much training is reasonable before the employer can fairly look elsewhere for candidates?

Clearly, if you have performed similar duties for the employer in the past, that should be enough to show that you do the work required, and you should be offered the role.

What is not so clear is at what point the level of training you require to perform the vacant role will no longer be reasonable.

It is probably not reasonable to expect them to offer you the role if you require an entirely different university degree.

But if all that is needed is some on-the-job training to help you become familiar with systems and duties of the role that are within your capability, then that may well be reasonable. As the Employment Court has noted, this regularly occurs when employees receive promotions – so why couldn’t it be expected in the context of changing your job as a result of restructuring?

CONCLUSION

If your role is no longer needed by the business, your employer is obliged to look for other roles that you can perform to see if you can be retained as an employee.

That duty means that you get preference over others, and certainly any external candidates, where the role is within your capability – even if you require some reasonable up-skilling to carry it out.