'Dismissed on the grounds of redundancy'

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

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

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

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.

....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!).