Time Limit for Accepting an Alternative Position
Optical Express v Williams UKEAT/0036/07/CEA has confirmed the operation of section 138 of the Employment Rights Act 1996 which prescribes a four week statutory trial period for employees who face redundancy to decide whether or not to take up an alternative position in the same company.
In this case, the employee was offered an alternative position with her employer following redundancy. She did not inform the company that she found the alternative position unsuitable nor that it constituted a repudiatory breach of contract until 6 weeks had passed from the day her trial period began. She claimed that under common law, she had not lost her right to claim constructive dismissal.
The Employment Appeal Tribunal stated that "the terms of section 138 are utterly clear." If an employee decides to accept a trial period of an alternative position, and has not given notice to leave the position within four weeks, she may not claim redundancy or unfair dismissal at a later date.
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