'Dismissed on the grounds of redundancy' - Feedback - Community Feedback

95 'Dismissed on the grounds of redundancy'

Mark | 0 Posts

26 Jan, 2018 19:24

Apologies if this is the wrong place to put this or if the public asking questions of the CIPD community in this way is not on.

I would be grateful for some advice please.

I am a Podiatrist working in the NHS. I have been in the same place of work for 23 years although I dropped 2 days a few years ago to work part time in another trust.

I am currently band 7 (in both jobs) and have been for about 20 years. I specialise in musculoskeletal conditions and minor surgery. All my training (including MSc) and experience is in that area.

My department is being restructured and moving over exclusively to high risk foot care (diabetes work) something I have no specialist knowledge or interest in. I was offered an interview as Band 8 team lead which I declined and asked to apply for a band 7 diabetes lead role. Even though I don't have the diabetes experience I interviewed and the correct person got the job (not me).

With the restructure my post has been made redundant.

In the last week of consultation my junior colleague handed in his notice so I was offered that job, band 6 diabetes specialist despite being told that there would be no cross band matching and any match would have to be 75% similar. It is a lower role with less status and responsibility and a completely alien area of my profession. I have been offered pay protection for 3 years and training. I am the only person in the department negatively affected (I also happen to be the most qualified).

I took legal advice from a solicitor and union. I was told that proving that SAE is not suitable is hard and legal representation is expensive. As a result my union declined to help me and I can not afford the legal costs. So at this point my choice is to take the SAE or leave. I had 2 meetings without prejudice at my request.

I declined the SAE (the job is really not for me) and as a result I have been given notice of dismissal on the grounds of redundancy. No package has been offered obviously. I have asked to not serve my full notice as i am finding the whole process stressful and prefer to be out. We have compromised on 1 month notice rather than three.

After deciding that I cant go forward with any legal challenge I was surprised in the formal meeting to be told that I had the right to appeal. I hadn't considered an appeal. I was told that this was mainly to appeal the consultation process (that has generally been handled correctly).

The questions I have are;

How does an appeal differ from a tribunal?

Is it normal to self represent at an appeal (can afford legal fees)?

Is the suitability of SAE something that is suitable for appeal?

What are the chances (obviously without know the intimate details of the case)?

With huge thanks in advance and apologies again if this is against forum etiquette etc.

4017 views

Emily | 0 Posts

29 Jan, 2018 12:28

Hi Mark

An appeal would be a good place to challenge the SAE - you wouldn't be entitled to legal representation at an appeal, but your union should be willing to represent you.

It's difficult to advise on the prospect of success, but on the face of it, your original role and the one offered appear to be very different.

Emily
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Peter Stanway | 0 Posts

29 Jan, 2018 12:35

In reply to Emily:
They are dismissing you so you have the right to appeal
You need to decide what you are hoping to get out of it (it is far from obvious to me that there is no package. They may not be generous but cannot evade statutory payments/responsibilities.)
IMHO you should be seeking at the very least a statutory redundancy payment
There are posts on this subject and the opinion of those in the know is that the test is largely subjective ie employee friendly so it makes sense for them to settle it rather than go to Tribunal and lose
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Mark | 0 Posts

29 Jan, 2018 13:31

In reply to Peter Stanway:
They have stated that there is no package as I have turned down SAE thus have effectively handed in my notice.
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Peter Stanway | 0 Posts

29 Jan, 2018 13:47

In reply to Mark:
That is nonsense
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Ann | 0 Posts

29 Jan, 2018 14:50

Hi Mark
You have the right to appeal against the termination of employment and you would not require legal representation, however your Union rep should be willing to represent.
Without knowing the full facts, I would assume that the SAE being offered isn't suitable and I would be appealing for that reason, stating clearly why it isn't SAE.
However have you been offered the statutory 4 week trial period for the SAE? If during the trial period you or your employer deem it unsuitable it does not affect your employment rights including your statutory right to redundancy payment.
Might be worth exploring this also.
Ann
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Elizabeth Divver | 0 Posts

29 Jan, 2018 14:53

In reply to Peter Stanway:

Yes, sheer twaddle.

Mark, I'd suggest you go back to your union and ask to speak to someone more senior. The person you spoke to has misinformed you.

As Peter S. says, if you search these threads you will find many threads on the definition of suitable alternative employment. Here's a recent one: www2.cipd.co.uk/.../67213

If you are made to leave without a redundancy package, you would be able to make a claim to a tribunal and sue for your statutory redundancy pay. However, you have an opportunity to make your case at the appeal hearing. Let's hope they listen to reason, but if they don't, all is far from lost. As you may have heard, there is no longer a fee for making a claim and this would not be a particularly tricky claim to bring. But before this got anywhere near a court room, you would be able to use the Acas early conciliation service to make your case. Even though the advice you can get from Acas is variable, they really ought to be able to inform your employer that it is largely up to the employee to decide whether alternative employment is suitable or not.

Have you been offered the right to take a companion into the appeal with you? Ideally, you would take a TU official who actually knew what he or she was talking about.

I think you have been treated shamefully and I am sure other people will chip in on this thread with more advice.

My very best wishes to you for a successful outcome.
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Elizabeth Divver | 0 Posts

29 Jan, 2018 14:56

In reply to Elizabeth Divver:
Crossed with Ann, but we are all on the same wavelength.
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Mark | 0 Posts

29 Jan, 2018 15:03

In reply to Elizabeth Divver:

Unfortunately my union rep is untrained as yet. The area rep was absolutely dismissive. Spoke to the union lead who was also dismissive. Mentioned the ACAS early conciliation service to the union head. I was told to drop it and move on. I'm not keen on getting my unions help after that.

I have spoken to ACAS who seem to be the other way inclined recommending I go to tribunal. I wouldn't have representation as the union have said no as have no win no fee solicitors. It is too much of a grey area/gamble for them.

I didn't take a union rep to my meetings for the above reasons.

This is why I am interested in appeal with self representation.

I have arranged a leaving date now (late Feb) and in the interim have sorted out further employment (lower grade but closer to home and more appropriate work to my skills). I hope this won't affect my chances of/at appeal.

At the meeting I asked if 'dismissal on the grounds of redundancy' meant no package as I had refused the SAE offered. I was told categorically no package.

At this point I just want to leave. Its really soul destroying coming in day after day even with the end in sight.
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Ann | 0 Posts

29 Jan, 2018 15:17

In reply to Mark:
Mark
'dismissal on the grounds of redundancy' says they are terminating your employment because of a redundancy and therefore you have not resigned? They've also given you the right to appeal? Therefore your appeal is two fold for me: 1. they have dismissed you, acknowledged in the correspondence you have received, therefore you have not resigned and are entitled to receive your redundancy payment due 2. the SAE wasn't suitable because of xxxx
Good luck, they have treated you appallingly.
Ann
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Keith | 0 Posts

29 Jan, 2018 15:20

In reply to Mark:
Mark

It frankly isn't that much of a grey area. Its pretty black and white and there is lots of case law that makes it even more so.

Its at its simplest level a two step process,

1) Is the job suitable - this should take into account grade, status, skills, professional level, pay etc etc

2) If it is suitable was the refusal reasonable or unreasonable in all the circumstances.

Purely from what you have told us the actions of your Trust fail on the first test (it is clearly a lower grade job , less status, different professional skill set) and even if its didn't it would potentially fail on the second.

I am surprised at the actions of your Trade Union based on what you have told us. I would be considering making a complaint against them for lack of support. IN addition based on what you have said the no win / no fees position is surprising as well.
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Elizabeth Divver | 0 Posts

29 Jan, 2018 17:32

In reply to Mark:
Mark, you have been badly let down all around and I completely get why you don't want to persist with your union.

In answer to your questions:

How does an appeal differ from a tribunal? It is an internal meeting with your employer whereas Employment Tribunals are part of the UK's legal system. ETs were originally set up to be much less formal than other types of court - there are no wigs or gowns - but you are still in a court room and there is still a formal procedure to be followed, witnesses being sworn in and giving their evidence under oath, witnesses being cross-examined by the other side etc.

Is it normal to self represent at an appeal (can afford legal fees)? Yes. In fact there are only very limited cases where you can bring a lawyer. That would be for someone facing a misconduct dismissal where they could be barred from practicing their profession.

Is the suitability of SAE something that is suitable for appeal? Definitely.

What are the chances (obviously without know the intimate details of the case)? On the information you have given us, I think you have an excellent case. It is well-established in case law that it is for the employee to decide if it is reasonable to turn down what the employer thinks is suitable alternative employment.

I think you will be able to glean enough from these threads to draft an argument to put forward at your appeal hearing. The CIPD's Q&A section has some useful information here: www.cipd.co.uk/.../questions

The Acas website has this to say:
" .. if an employer offers an alternative, it is up to the employee to decide whether or not it is really suitable, based on factors such as pay, hours, location, status and working environment."
www.acas.org.uk/index.aspx

The CAB has a nice clear page on what to do to reasonably reject an offer of alternative employment if it isn't suitable for you: www.citizensadvice.org.uk/.../

I hope you have a colleague you feel would be a good support at the meeting and who is good at taking notes. I would prepare by making your own notes on the reasons why the offered role is not suitable for you or drafting a statement you can read and then hand to them.

It's probably the last thing you feel like doing, but I would investigate your union's complaints procedure.
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David | 0 Posts

29 Jan, 2018 19:26

In reply to Elizabeth Divver:
Just read this sorry tale and find it absolutely dreadful and appalling

Would wholeheartedly recommend, Mark, that you make a formal written complaint to your union about their lack of proper care and support to you as a member: don’t be put off by anything any of them say to you orally - you need to exhaust their internal complaints procedure and if needs be tell them they’re in breach of contract to you as a member and you’ll sue them for all the costs of acting for yourself in the matter, including your legal expenses

Which trade union is it, by the way?
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David | 0 Posts

29 Jan, 2018 20:04

In reply to David:
PS Mark

It is a misunderstanding of employment law to say that you’ve effectively resigned as a result of allegedly refusing to accept suitable alternative employment. Your former job is without a doubt redundant and if your employer wishes to dispute that it isn’t SAE then they should dismiss you as redundant but withhold the statutory redundancy payment as well as any contractual enhancements. In my opinion they can’t have it both ways unless there are contractual limitations about payment of the enhancements that we don’t know about

You should ask your employers to state in writing their justification for refusing to pay the enhancements and take it from there / come back to us on here.

Unless they can rely on any contractual terms regarding the enhanced package, they’re in breach of contract not extending it to you and you or your union should challenge them on that score at appeal
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Robey | 0 Posts

30 Jan, 2018 09:21

Great answers from the community, here. I hope Mark will come back and update us on how things are going.
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Mark | 0 Posts

30 Jan, 2018 09:42

In reply to Robey:
So at this point I have a leaving date. I have also sent a formal request for appeal to the head of HR.
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