NHS Department restructure

Judge Honourable Mr Justice Langstaff
'The contract of service with an employer is that which is referred to in section 136(1)(a).  There is a distinction between the termination of a contract with an employer and the termination of service for the employer more generally.  In the latter case an employee may remain in the service of the same employer as that employee had served previously, but he is nonetheless dismissed in law if his contract has terminated and been replaced by a fresh contract, at least in the absence of a truly consensual termination.  His contract has ended, though he goes on serving. The general point is well demonstrated by the case of Hogg v Dover College [1990] ICR 39.  
This distinction between continuing service with the same employer and termination of a contract with the employer needs to be borne in mind.'

Apologies it's a long one

To me this judgment is relevant to ‘fire and re hire ‘ situations, where the employee who has their former contract terminated and replaced by a new one which they accept can nonetheless claim for unfair dismissal regarding the termination of the former one.
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Many thanks David. It was cited in lees v imperial college. The claimant wasn't rehired but there was a claim for unfair dismissal as her employment contract no longer existed. There is similarities with my situation but there is no age discrimination in my case.

My interpretation is the same as David's - you can claim unfair dismissal because the first contract was terminated, even if the employment remains continuous because another contract starts immediately

Claire

What are the Trade Unions saying about all this?

Initially Trade unions advised me it wasn't redundancy. Against union initial advise went to grievance where I argued it was redundancy and I objected to band 5. Grievance declined. I Appealed and went to 2nd stage. Where I researched employment contracts and told trust they had unilaterally changed my contract and fundamentally breached my contract which was unlawful in ET. Told them my post was redundant and my post was terminated and they did not follow there own grievance policy. Union rep didnt say a lot as i think knowledge of employment contract breach is limited in this scenario. Trust upheld grievance. My post was redundant and they had unilaterally imposed the band 5 contract without my agreement. However I did not agree with their remedy and i resigned deeming constructive dismissal. The 3 month less 1 day deadline is 3rd and union not made a decision if they would legally represent me so will need to start ET and early conciliation which means union automatically will not represent me. Speaking with the regional rep I did not feel reassured that he understood employment contract breaches. Looks like I will be going it alone which us extremely daunting

That's useful information Clare and sorry you have had such a difficult time.
You indicate that they accepted it was redundancy in the end, but you rejected their suggested remedy - are you able to say what the remedy they suggested was as that will probably be key to the likelihood of success at Tribunal (e.g. if their remedy was that it was a redundancy and they would pay you your redundancy payment, you may not have much success at, whereas if they accepted it was redundancy, but just proposed an apology or a bit of salary protection etc, your case would be stronger..
Please try not to worry too much about going it alone - Tribunals are very aware that it can be daunting and will try to relax you as much as possible

There remedy was they advised my post was deleted by redundancy on 3rd Dec. They would pay me as band 6 and issue me with two months notice. My post was gone but they would give me duties to do while I was working my notice. They advised they would not PILON. They would look for suitable alternative during notice and if at the end they could not find me suitable alternative they would put me back into band 5 role. I rejected the remedy and requested that i would work 3 more days to cover safe patient handover and would expect redundancy monies. My existing contract was no more. It was not logical that I was to be given two months notice of my employment contract being terminated by redundancy when that post had been terminated two months prior. I did not have any work to do as my duties under my employment contract did not exist anymore. The trust declined to pay me redundancy money and hence I resigned.

Complicated and very difficult to navigate

Thank you - that is a daft remedy, but helpful to you as they admitted that your role was redundant (and presumably put in writing). Sounds like unfair dismissal and breach of contract really. I don't understand why the Union aren't supporting you. It seems very straightforward. They don't seem to understand the law around suitable alternative employment.

Good luck with your claim

Hi Clare

It seems to me that once they have accepted that this was a redundancy, a number of things follow:

The proposal was to go from 23 band 6 roles to 11, so that meant a loss of 13 jobs, which is below the threshold for collective consultation. However, they still had an obligation to follow a fair process, which would include consulting with you with a view to finding reasonable alternatives to redundancy. Once the collective consultation regime is triggered, there is an obligation to consult on the underlying business decision which puts jobs at risk of redundancy (reducing the number of band 6 jobs). It doesn't matter that more jobs are being created or if sufficient people accept alternative employment that the number who actually end up out of work is under 20, it is the number of jobs that will be cut that determins whether the collective consultation regime applies. Below 20 proposed redundancies, the employer doesn't have to consult on the decision but must consult with the affected employees on the effects of the decision and must seek ways to avoid the loss of the job resulting in the loss of the employment. Does the "consultation" process you went through meet the standards expected of redundancy consultation? If not, that renders their process unfair and if the ET agrees, you have won your unfair dismissal claim.

If they put forward alternative employment, whether it is a reasonable alternative is down to you, not to them. In this case the alternative offered is a junior role with a 20% pay cut and loss of authority. I don't think they will convince a tribunal that your refusal of their alternative was unreasonable and justified withholding your redundancy pay.

Finally, it sounds as if they decided to go down the fire and re-hire route without telling you. If that wasn't what they were doing, then they were changing your terms and conditions unilaterally but without telling you. Either way, I have never heard of this before and it seems eccentric in the extreme that they would not confirm a change in writing or issue the new contract. You have a very clear papertrail in the form of your payslips to demonstrate that they did move you onto new Ts & Cs. I can't see how they argue their way out of that one!

AS Teresa says, Tribunals will try and steer someone representing them self through the process. Also, there may be local organisations that would represent you for free. The CAB might have information on this. If this gets as far as a date for a hearing being set, I would recommend you sit in on some tribunals.