Can I be turned down for a restructure role because it is a promotion?

I work in a school office subject to a restructure. There are currently two posts, one slightly higher than mine. I have been told I cannot have it because it would be a promotion for me. There is no suggestion from the school that I am incapable of doing the new job and the person on a senior grade who has turned down the role has offered to train me. They are insistent the only reason is it would be a promotion. There is no one else in school looking for the position. The alternative is the school recruiting externally resulting in no one in the office with any knowledge of how the school operates. I should also say that I have 100% attendance and never been disciplined or indeed received any complaints about the quality of my work or abilities.

Gavel with employment written on it, representing employment law


The statutory redundancy payments scheme, contained in the Employment Rights Act 1996, encourages employers to search for suitable alternative employment in a redundancy situation.  Failure to offer a redundant employee an available alternative role may convert a dismissal into an unfair dismissal.

An employee is entitled to a statutory trial period if the role offered is sufficiently different to their previous role.  The trial period begins when employment under the old contract terminates and it ends four weeks after the date on which the employee starts work under the new contract.

The suitability of the alternative role is assessed objectively by a tribunal as it must be considered “in relation to the employee” concerned.  As a general rule, tribunals expect an employer with sufficient resources to take reasonable steps to ameliorate the effects of redundancy and this may include allowing an at-risk employee the opportunity to demonstrate their suitability for a vacant position even if the employer is doubtful about this because the employee lacks prior relevant experience.

The fact that the role on offer is a promotion should not preclude you from applying for the job although the Tribunal are likely to review the job description and consider your experience and skill set to determine whether the employer’s refusal to appoint you to the role is reasonable in the circumstances.  Given that the role remains available and the existing Grade 6 employee has offered to train you in the role before they leave, I consider that it is not unreasonable for the employer to allow you to apply for the role (particularly in light of her background) and if appropriate, offer you a trial period.

*Samantha Tanney has assisted in answering this question.

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