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

Update:
I had a call back from ACAS. I have been offered 3 months pay. This is for commercial reasons rather than an admission of wrong doing.

ACAS told me that it is rare for an NHS trust to make an offer as they have to get permission from the treasury.

In reply to Mark:

Not entirely accurate, as if the Trust's budget holder has a contingency fund (which many do) they will have authority to use that for whatever purposes they deem "contingent". But they do, nevertheless, have to account for what they have spent as being spent appropriately (e.g. wild parties for senior managers only, no wasting it on additional staffing or patient care), so someone's cage has been rattled!

Your decision to make.

P

In reply to Mark:

What do you think your loss is?

In reply to Mark:

Hi Mark,

Might be useful to chip in here from an NHS perspective on the ACAS comment, but apologies if i'm repeating what others have said elsewhere.

NHS organisations are supposed to get permission from the HM Treasury for any payment they make to which the employee is not contractually entitled.

However I don't think they will have done this, what I imagine they are doing is a bit of a fudge (!) and offering to pay your full notice period (i think you said you were B8a, so this is 3 months usually) as Pay In Lieu Of Notice.

I say 'fudge', as I think I also saw somewhere that you had agreed a one month notice period so in offering you 3 months pay they are (technically) only covered for the remaining 2 months without seeking approval. That fact however is the trusts risk to take in offering you that 3 months pay.

I also saw that you have another job in a trust closer to home which you started the following week after your termination. Under NHS AfC Redundancy T&Cs Section 16, you would need to repay any redundancy payment to your previous employer if you secure NHS employment within 4 weeks of your termination date.

I don't know what a tribunal view on that particular provision would be; given that it essentially relies on the fact that any other role within the NHS is Suitable Alternative Employment. I note from a couple of posts back in mid April that there was discussion about other NHS organisations being possibly considered 'associated employers' although this doesn't appear to have been something explicitly considered by a tribunal previously, so it is potentially a new and contentious point.

I agree wholeheartedly with the stance that has been taken before that if you are not being paid something that you are entitled to that pursuing this would be a reasonable thing for you to do. However the risk being that going through all this and a tribunal agrees you should have had a redundancy payment, but then due to commencing NHS employment within 4 weeks of leaving, you then find out that you are not entitled to it.

I have cycled through the posts and responses and I must say that I agree that the whole debacle has been a sorry mess from beginning to end, and I hope you manage to get something by way of a response, result, closure on this whole thing.

In reply to Robin:

An invaluable ‘chip’, IMHO, Robin - summarises the thing most acutely!

In reply to Robin:

A valuable and detailed "chip" indeed, however as I read Mark's comment: "I have been offered 3 months pay. This is for commercial reasons rather than an admission of wrong doing....." that sounds like a settlement payment, not an extended redundancy, so the "clawback" applicable to redundancy would not apply and the payment would not be an addition to wages (i.e. not a sum in excess of entitlement) but a payment the budget holder might be entitled to make as a negotiated contract (which of course a settlement is), as a contingency, without further external reference.

Given also that the offer has come via ACAS I would be surprised if there were any potential penalties attached as far as Mark is concerned, notwithstanding any errors on behalf of the Trust or its budget holder. If he accepts the payment in good faith and full settlement of the dispute (i.e. not as "redundancy pay" or some other entitlement.... which the Trust's statement of it being without prejudice to any liability on their part would clearly exclude...) then any subsequently identified mis-allocation of funds in its payment is the Trust's problem to solve... Not his!

P

In reply to Peter:

Apols I think I have missed a clarifying line in the middle of my post last night; so wasn't entirely clear, the points regarding the 3 months settlement and the redundancy pay clawback should have had a large break in between them!

The 3 months pay / settlement offered via ACAS is, I think, the trust offering Mark payment in lieu of notice for his full notice period, which would not be subject to any clawback as it is a contractual PILON payment and indeed would likely be covered by a COT3 or a separate settlement agreement.

The redundancy clawback provisions I was referring to would potentially come into play be in the event that Mark turns down the offer made via ACAS and pursues the matter at tribunal. Even in the event that the tribunal finds in Mark's favour ref SAE, and that he was due a contractual redundancy payment, that redundancy payment would then (in my understanding and practical application of the NHS AfC T&Cs) need to be paid back due to securing NHS employment within the period of 4 weeks.

robin

In reply to Robin:

Yes, that clarifies. The offer is clearly not redundancy, however while the quantum of payment offered may be the same as the notice due its status would become (as you now rightly identify) a settlement, not an entitlement under the contract.

In this case the settlement seems to be proposed as being through ACAS and the use of the Cot3, but the same would apply to a settlement agreed between the parties during a protected discussion and merely reviewed and countersigned by the employee's legal adviser.

"Payment in lieu of..." and "payment of..." being quite different in law (a fact often overlooked regarding PILON but one that HMRC have recently taken steps to avoid being abused).

The same would apply, however, to any award made by an ET: The basic award "equates to" the sums due for notice, redundancy etc. but is not "payment of" those sums; therefore the redundancy "claw-back" would not apply. An ET would, however, take into account the earnings (from whatever source) during the period from the original termination to the date of awards(s) being made, reducing the "loss" to be compensated by the employer. Nevertheless, that adjustment would be from sums awarded "on top" of awards calculated "from" contractual entitlements (notice, redundancy, outstanding holiday etc.)

The issue an ET might consider however, is that touched on earlier by David, regarding whether the "employer" is the Trust, or the NHS itself.

P

In reply to Peter:

16.22 of this document appears to refer

www.nhsemployers.org/.../section-16-redundancy-pay-for-england

IMHO it is by no means clear about who is the final arbiter about what is or isn't SAE and / or unreasonable refusal thereof, but purportedly contractual t and c can't override statute law - it seems to me that whoever drafted / approved all this wasn't very competent as regards employment law.

PS

But it says that statute law (ie the ERA) shall determine suitability etc so presumably associated case law and Employment Tribunals and judges do too.

- if they were just dealing with contractual *enhancements* etc to statutory redundancy payments, that would make a lot more sense (or in this case less nonsense) but they seem to be trying here to put their own jibberish in place of the Law.

In reply to David:

PS

Another tawdry example of this 'Agenda for Change' stuff being used to try and justify disregarding basic employment law rights:

www2.cipd.co.uk/.../62705

(anything in contractual t and c that seeks to override employment law / rights will surely by definition amount to an unfair contract term and therefore automatically fail?)

In reply to David:

....Probably drafted by a lawyer. :-)

I love the deferral to the statutory definitions of suitability, but then the attempt to insert a contractual implication of "flexibility" being expected!

Ho! Ho! Ho!.....!

(....or Lol)

What is interesting, however, is that they have in effect opened the door wide to the argument that it is the "job in situ'" and its duties and responsibilities which is becoming redundant, not the "role" of the employee (e.g. as Nurse, Therapist, or other professional); so in Mark's case this would clearly mean his position, status, remuneration and tasks "in place" for that Trust, and not related to the wider professional expectations of his role within overall NHS utilisation of his "work of a particular kind" (i.e. profession).

PS, Yes, any contractual term that seeks to evade or nullify statute would not only be void in itself, but could act to nullify the whole clause/section of contract it refers to, so creating detriment(s) in breach should they be enforced! (Indeed it could potentially nullify the whole contract!).