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'Dismissed on the grounds of redundancy'

Mark

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.

Parents
  • So, at this point I still haven't heard.

    The appeal was on the 15th March and the associated paperwork advised me to expect a result on that day. I understood that more info was needed and the result had to be deferred. I was told that I should hear within 5 working days.

    I received an email with attached letter from the HR rep on the panel on the 6th working day after the appeal. I was advised that the result would have to be deferred further and that I should receive a result by the 30th April (Good Friday).

    Nothing. On the 4th April I emailed the HR rep and got an automatic reply advising me that she was on leave until the 9th April. Later that day (9.45pm) I got a reply from the char of the panel advising that I should receive their response by friday - today. As yet nothing.

    I have been on leave this week and most of it seems to have been spent waiting for an email and being jittery whenever I check my phone for one.

    It seems that my feelings are low down on the general agenda. Just a prompt courtesy email to inform me of the delay would be helpful. Given that the main reasons of rejecting the SAE was my feelings towards the job and my feelings seem to have been forgotten about means that I am starting to lose faith in this appeals process.

    I am tempted to inform them of this telling them that I have lost faith in the process and threaten to withdraw and move straight on to tribunal. This would obviously be a stupid thing to do as I cant go to tribunal because I cant afford the legal representation. Just getting angry now.

    Do I just wait? What to do next?
  • in reply to Mark
    Hi Mark

    There are a couple of possibilities. They could be scurrying madly around behind the scenes trying to come up with a way to get out of the hole they find themselves in. As the obvious exit route is to overturn the dismissal and they haven't done that, you could see the delay as a bad sign. However, there is an even more depressing possibility, and that is that they're all enjoying a lovely holiday and are not thinking about work at all but will pick this up again when they are all back. There may be other possibilities and we may never find out what's going on, but I do sympathise with you. This must be immensely wearing.

    Whatever is going on, please revise your opinion that you can't go to tribunal because you can't afford representation. When the Employment Tribunals (or Industrial Tribunals as they were then) were set up, it was with the explicit intention that procedure would be simpler and less formal than other courts (e.g. no wigs or gowns) so that people would be able to represent themselves. I don't want to pretend that bringing a claim is easy or stress-free, but please take on David's comments above.

    Having said that, if you have exhausted your union's complaints process it would be worth checking for other sources of support in your local area. There may be legal advice centres that offer a free service. Usually organisations of this type only have the budget to take on a certain number of cases per year, but you should still see what is available. I'd start off by talking to the Citizen's Advice Bureau as they may know what is available locally.
  • in reply to Peter
    Peter, I would be grateful if you did. Any input would be helpful.

    With thanks

    Mark
  • in reply to Mark
    Hi Mark

    Where are you now formally as regards your employment and it’s terminstion?

    Your employers appear to misunderstand that even though they can seek to withhold a statutory redundancy payment from you on the grounds that you unreasonably refused suitable alternative employment thst doesn’t alter the fact that you have to be dismissed fairly and in accordance with your contractual etc rights and entitlements.

    How long is your continuous employment and how much notice of dismissal are you entitled to?

    Your employers still have to dismiss you for reason of redundancy: it is eg total nonsense for them to try to assert that you have ‘been deemed to have resigned’ or anything similar just because you declined their offer of alternative employment. Your old / former post is redundant, so the reason for your *dismissal* by your employers should be redundancy and you should have been served formal notice of dismissal and either allowed to work it out or be paid in lieu.
  • 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.
  • in reply to Steve Bridger
    Wow! Thank you Steve. I hadn't noticed!
  • 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.
  • 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.
  • 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.
  • 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.
  • in reply to Mark
    Well, I spoke to ACAS today to start their early conciliation service.
Reply Children
  • in reply to Mark
    Well done, Mark. I think that was an excellent idea.
  • 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
  • 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!
  • 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.
  • 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.
  • in reply to David
    Sorry if I have missed something but I have to ask what is the point of going to Tribunal now?
    if Mark is on a lower salary than before he has on-going loss but no gap of zero income
    I am not seeing a discrim claim
    I think what is missing is their breach of a contractual redundancy payment
    Mark may win because the Trust have been stupid/worse but for what gain?

    If Mark wants a pyrrhic victory then he will have my support but victory for all the hassle/stress is a difficult decision. Hopefully EC or later conciliation will minimise the risk/hassle
  • in reply to David
    Some of these provisions can become incredibly complex, for instance before taking up the role of lead for *** Cancer Haven (London), my daughter (professionally a Physiotherapist) was McMillan Liaison for two of the Major London hospitals. Funded by McMillan, she was employed by one Trust, nominally managed by the other (because that's where her office was) and when the (5 year) contract was renewed the funding route changed to the other Trust, but under same terms and the same (administrative) management, while her (effectively non-practicing) professional status of course remained the same, as did her administrative SMT/Liaison role in both Trusts....!

    (I think I have that right........???????)
  • in reply to Peter Stanway
    Sorry Mark
    I should have congratulated you on the new job and wished you all the best with it.
  • in reply to Peter Stanway

    Probably fair comment Peter, as we seem to have a fluid and developing story here but, while my last crossed with your last two, it remains to be seen whether Mark has in fact got all he was entitled to and whether any significant issues remain outstanding and worth exploring/explaining, for him or others, now or in future.

    As in many cases, our discussions of one situation here remain relevant for others yet un-dreamed-of (or should that be un-nightmared of?) and given that the NHS has been making these same tanged webs of incompetent administration exacerbated by poor (and/or ignorant) "make it up as you go along" management since I was part of it (a long time ago), exploring the ramifications seems worth doing, if David is already in the detailed picture.

    .....As Mark (or someone else) may (and almost certainly will) be coming back with the same story, regarding this new trust, at some stage down the road; so worth resolving (what we can) now.

    We are not just advising "a client" on today's problem; we may be offering insights for many others in similarly frustrating and oppressive circumstances, now or in years to come.

    I think that's worth doing; if David see it so from the more detailed information he now has, off-site.

    P