'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.

4185 views

Peter Stanway | 0 Posts

30 Jan, 2018 10:43

In reply to Mark:
Do not tell them about the other job offer
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David | 0 Posts

30 Jan, 2018 10:50

In reply to Mark:
Hi Mark

Presumably, you're not appealing the redundancy dismissal as such but the financial terms that they applied to it.

I think your employer should be asked specifically to provide a detailed written explanation as to their justification for paying you only statutory redundancy and not the enhanced package.

As mentioned before, unless specific exclusions apply to the enhanced package, the test / criteria for what is or isn't suitable alternative employment that it would be unreasonable to refuse ought to be exactly the same both for the statutory and for the enhanced compensation payments.

Would also strongly recommend that you do rattle your union's cage as hard as you can, at their national / head office level.
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Mark | 0 Posts

30 Jan, 2018 10:59

In reply to David:
David, there is no package enhanced or statutory.
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David | 0 Posts

30 Jan, 2018 11:03

In reply to Mark:
You mean they are refusing to pay the statutory redundancy, Mark?
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Elizabeth Divver | 0 Posts

30 Jan, 2018 11:05

In reply to David:
@David - When Mark said "no package has been offered" and also that they are saying by refusing the job he has resigned, I took it to mean that they are not paying statutory redundancy pay because he has turned down what they regard as suitable alternative employment.

@Mark - Is that the case?

I would also consider retracting your request for a shorter notice period. If they want you out sooner, let them give you pay in lieu of notice. At the moment you are losing out on 2 months' pay. However, if you plan to start your new job within the 3 months, then as Peter advised I would leave the notice situation as it is and not mention to them that you have a new job. If you contemplating a claim for unfair dismissal, then by finding another job, albeit junior, you would be mitigating your losses and the loss of earnings element of any compensation would be consequently reduced. But if you are claiming your statutory redundancy pay and any other payments related to your dismissal, it will be irrelevant that you have found another job. Once it is accepted that it was reasonable for you to turn down the offer of a job with lower status, less responsibility and in an area of your profession where you have no experience, then you have an absolute right to your redundancy pay regardless of what you do next.
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Elizabeth Divver | 0 Posts

30 Jan, 2018 11:06

In reply to Elizabeth Divver:
Crossed with David, but we are all on the same wavelength now.
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Steve Bridger | 0 Posts

Community Manager

30 Jan, 2018 11:09

In reply to Mark:
Keep us posted, Mark. The Community is right behind you.
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Mark | 0 Posts

30 Jan, 2018 11:16

In reply to Steve Bridger:
My service lead has also told me that she had been told confidentially by someone in HR who has been handling the consultation that I have a case. They felt that it was as much to do with being the only person negatively affected as much as the downgrade and suitability of the SAE.
I suppose it comes down to the opinion on the day of who vever over sees the appeal.
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Elizabeth Divver | 0 Posts

30 Jan, 2018 17:26

In reply to Mark:

Did you service lead mean that you have been unfairly selected for redundancy? If so, could you tell us why he or she thought that?

You are right that it will come down to the opinion of the person hearing the appeal, although they would normally be supported by someone from HR to advise on employment law. Therefore, I would expect that either the person hearing the appeal or the HR person advising them would understand the grounds of your appeal against the decision to withhold statutory redundancy pay: an explanation from you of why the alternative employment is not suitable plus reference to external authorities such as Acas on how alternative employment is decided to be suitable or not. However, it would appear that the decision makers have not sought advice thus far or the advice they have been given was woefully faulty.

There is no statutory right to an appeal in a redundancy situation as the Acas Code of Practice does not apply, but it is good practice to offer one so it is a good sign that this offer has been made to you. If they go about this as if the right did apply, then the person hearing the appeal should not have had a role in proceedings thus far. In an organisation the size of the NHS, this should be perfectly feasible.

If you draft notes of the points you will make or a statement to read at the meeting and then hand to the person hearing the appeal, I know I will be speaking for many contributors to these forums if I say we will be happy to look it over for you before the meeting.
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David | 0 Posts

31 Jan, 2018 11:33

In reply to Elizabeth Divver:
Hi again Mark

Have to point out that I think you may be doing yourself a disservice if you don't vociferously complain as suggested to your union Head Office and if needs be insist on making a formal complaint.

Your union readily (if they wish!) has the resources to access lawyers etc if needs be. Furthermore, if you are seen at Workplace Appeal Stage to have the backing of your union, your employer is highly likely to think twice about entering into conflict with them by turning down your appeal
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Ann | 0 Posts

2 Feb, 2018 11:01

In reply to Mark:
Hi Mark please keep us updated with further developments on your situation. It is always useful for us to learn what happened next.
Good luck
Ann
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Mark | 0 Posts

3 Feb, 2018 14:40

In reply to Elizabeth Divver:
Both my clinical lead and service lead have told me 'off the record' that they felt the SAE was unsuitable. It was essentially only offered as someone handed in their notice. No thought was put into is other than with pat protection, and offered training it would tick a lot of boxes. The actual suitability of the work was given little thought.

Currently I have notified of my intention to appeal laying out my points as to why. That was last week and I have not had a response yet. Trust policy says thatI should have confirmation within 5 days. I will chase that up on Monday. Policy also says that appeal can be refused which I am worried about.

Will keep you informed.
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David | 0 Posts

3 Feb, 2018 15:37

In reply to Mark:
Hi Mark

It is fairly plain, given that (despite the finite period of pay protection) it's (a) a lower-grade job and (b) in a different area of your profession which is not one you wish to enter or pursue.

Therefore, I am sure most employment lawyers and tribunals would judge that your employer has no right to withhold redundancy payment.

If your appeal on this point is rejected, even without the union it will cost yoi nothing to challenge it at a Tribunal. Plenty guidance is available here.

BUT, IMHO your union on the facts given seem to have been very mistaken in refusing to challenge this, and I'd strongly urge you again to appeal this decision with your union.
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David | 0 Posts

3 Feb, 2018 15:42

In reply to David:
ps Mark

This precedent is probably very relevant
www.burnetts.co.uk/.../when-is-suitable-alternative-employment-not-actually-suitable
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Mark | 0 Posts

11 Mar, 2018 19:29

In reply to David:
Just a bit of last minute info.
My appeal is on thursday.
I received necessary papers on Friday and have only just had the time to read them (I have already written my statement to read out).
The biggest problem I have is the Lead or the neighbouring boroughs Podiatry dept (also the same trust) has said that all podiatrists should have some knowledge of the diabetic foot and training is being offered. He feels my previous knowledge, experience and training will bring more to the post.

It is true that I have some knowledge in this area, mainly from my degree 20 over years ago. Yes, I could do the job if I had to but I have no wish to and feel it has set my career back 20 years and it is in an area that I have no wish to practice in as the majority of my work. The additional effort to update my skills would be detrimental to my other job (another trust, in muskuloskeletal area of Podiatry that requires a fair degree of self led CPD).

They have countered my upset about loss of responsibility by the fact that I do not want to take on responsibility for the high risk foot. To me these are different types of responsibility. As I will be downgraded there would be a loss of corporate responsibility which is quite different to the responsibility to try and avoid a patient losing a foot. This is why I have always avoided high risk foot care.

Not really sure how to counter these arguments.

At this point I am not very hopeful of a positive outcome to me.
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