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'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.

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  • David

    | 0 Posts

    12 Apr, 2018 01:39

    In reply to David:

    PS

    Iterated eg here

    www.xperthr.co.uk/.../
  • Steve Bridger

    | 0 Posts

    Community Manager

    12 Apr, 2018 09:11

    In reply to Mark:

    Peter, Mark... I'll sort that out in an hour.

    Peter... your 8,000th post. Incredible milestone... and my heartfelt thanks and respect.
  • Peter

    | 0 Posts

    12 Apr, 2018 09:16

    At the moment Mark, you must feel as if you are slamming your head into a brick wall! Both your employer and your union seems to have totally lost the plot and are failing to follow any lawful procedure; making it up as they go along to suit their own agendas.

    The facts are, however, very simple, as David and others have tried to indicate.

    What you have been offered is NOT SAE. That is very clear, very obvious and is the simple base-line for all else, so please, don't let the frustration make you give up; you are now getting sound advice from David so relax a little and we'll try and make it a bit clearer from here on!

    I do not know why your union have taken the curious position they have, it is certainly not what I would have expected and the lack of support from an "untrained" local rep and region seems positively bizarre!

    Suggesting you might represent yourself in Tribunal probably seems like a crazy idea! But as has been said by Elizabeth, that is exactly what Tribunals were set up to allow. Easy access, by anyone, to ensure employers did not use their greater resources to steamroller employment- and other legal- rights. The process is self-explaining as it progresses and can start with a straightforward "do it yourself" on-line application (known as an ET1). Shortly thereafter ACAS get involved, to see if the case can be settled without a full hearing; if not then there might be some preliminary discussions for "directions" which are just the requirements for exchange of documents and information, and guidelines on what needs to be done and when.

    Then if all else fails the hearing will happen some time later, again with full guidance of what to do and where to go etc. etc.

    Unlike TV Court-Drama: No wigs, gowns, or people being barracked and humiliated by fast-talking lawyers. ET Judges are tasked specifically to ensure fairness and they are allowed to intervene and ask questions themselves to seek important clarification, especially if someone is representing themselves.

    They don't "take sides" but they won't allow anyone to be "railroaded" by smart lawyers and semantic trickery either.

    It's a court; it has all the powers of a court; but it's accessible and not anywhere near as frustrating or intimidating as the nonsense you've already been through! So don't give up!

    David has vast experience; so rely on him (and others here). We're here for no other reason than to help; with hard-news if it has to be given, but at the moment the ones in the deep, dark, hole are your employers!
  • Peter

    | 0 Posts

    12 Apr, 2018 09:19

    In reply to Steve Bridger:

    Wow! Thank you Steve. I hadn't noticed!
  • David

    | 0 Posts

    12 Apr, 2018 10:03

    In reply to Peter:

    Just to postscript Peter’s sage advice: statistically, most Tribunal claims get settled or otherwise withdrawn prior to any actual Hearing. Most especially claims that are more than quite likely to succeed or be far more trouble and expense and bad publicity to the employer than Just quietly settling it. Bearing in mind that the employer can’t usually claim for their legal costs even if they ‘win’ the case. Indeed, the entire thrust of the mandatory ACAS stage is to reach an early out of court settlement if at all possible.

    Of course, all that said, Mark, you seem to be up against bureaucratic institutionalised idiocy here, so it’s a possibility that a Hearing will happen. However, as Peter observes, representing yourself, although usually daunting, can be surprisingly straightforward and effective.
  • Mark

    | 0 Posts

    12 Apr, 2018 10:25

    In reply to David:

    So at this point my employment has been terminated. I formerly refused the SAE in jan and was called to a meeting. HR had informed me that the likely outcome would be my dismissal on the grounds of redundancy. At the meeting the senior manager shied away from the 'R' word. I was offered 3 months notice. Due to the stress of the situation I asked to leave sooner as 3 months would draw things out. We settled on 22nd feb. I am now employed in another Podiatry dept in another trust as a band 6. Even though the work is different from my previous the focus is not on the high risk work my previous dept was moving to. The job fell into my lap after a conversation with a friend during the end of the consultation period but after I knew that my job was going. I had not been offered SAE at that stage. I initially rejected the offer but realised that as my job was going I needed permanency and stability so accepted.

    I had been employed for 23 years. My notice period was 3 months as explained above.

    My dismissal was on the grounds of redundancy.
  • Mark

    | 0 Posts

    12 Apr, 2018 10:28

    In reply to Mark:

    I think I shall sleep on things for a few days to get a bit more clarity then will probably fill out the ACAS forms at the weekend.

    I will also email a few band 7 MSK podiatrists that a loosely know and ask them their opinion if they had been offered similar SAE. They have no knowledge of this case and my situation.
  • David

    | 0 Posts

    12 Apr, 2018 11:06

    In reply to Mark:

    Hi Mark

    I fear your new employment might complicate matters, unless there was a clear break during which you were not employed by an NHS Trust of at least one complete calendar week.
  • Mark

    | 0 Posts

    12 Apr, 2018 11:28

    In reply to David:

    I feared that may be the case. I started on the monday after my previous post finished. Even with a gap I would have been in continuous employment because of my other part time post that had continued throughout. I stress that I would never have accepted the other post had my post not been made redundant and the only reason the conversation that led to the job offer came up was because of the redundancy.
  • Mark

    | 0 Posts

    13 Apr, 2018 19:10

    In reply to Mark:

    Well, I spoke to ACAS today to start their early conciliation service.
  • Elizabeth Divver

    | 0 Posts

    13 Apr, 2018 23:08

    In reply to Mark:

    Well done, Mark. I think that was an excellent idea.
  • David

    | 0 Posts

    14 Apr, 2018 01:25

    In reply to Elizabeth Divver:

    This case may be relevant to the complex matter of continuity of employment in its various forms and implications between different NHS Trusts and NHS Occupational roles

    employmentappeals.decisions.tribunals.gov.uk/.../11_0048fhwwSBLA.doc
  • David

    | 0 Posts

    14 Apr, 2018 08:47

    In reply to David:

    See too in the above regard:

    www.legislation.gov.uk/.../218

    It doesn’t seem that this applies to your own particular occupation, Mark, but the question still perhaps arises as to whether NHS Trusts are ‘associated employers’ in the same way as if they’d been different parts of a centrally -controlled group of companies. Arguably, by implication, the EAT precedent cited didn’t raise or consider this possibility at all, so they’re not, but that might just be that this wasn’t part of the case ever put to them so they simply didn’t consider it.

    Legal minefield coming up, possibly!
  • Peter

    | 0 Posts

    14 Apr, 2018 10:56

    In reply to David:

    Very much so, especially as in some cases trusts "share" service provision with other trusts under a single management. In theory a practitioner could therefore be deemed to "change employers" from one year to the next while in the same position and without TUPE applying, breaking their continuity of service.

    I am surprised the "associated employer" argument wasn't raised, since a purposive reading of the statute begs the issue be considered, reflecting the fact that while trusts are administratively unique, their clinical management (e.g. practices and standards, qualifications and clinical hierarchies) are unified under the NHS, as are their professional bodies.
  • David

    | 0 Posts

    14 Apr, 2018 11:03

    In reply to Peter:

    Yes, think the definition of associated employers requires being subject to the same central ultimate control which of course is NHS England / UK Government / Parliament here.