• Replies 95 replies
  • Subscribers 4 subscribers
  • Views 14851 views
  • Users 0 members are here
Options
Related

'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.

  • in reply to Mark
    Mark, you have been badly let down all around and I completely get why you don't want to persist with your union.

    In answer to your questions:

    How does an appeal differ from a tribunal? It is an internal meeting with your employer whereas Employment Tribunals are part of the UK's legal system. ETs were originally set up to be much less formal than other types of court - there are no wigs or gowns - but you are still in a court room and there is still a formal procedure to be followed, witnesses being sworn in and giving their evidence under oath, witnesses being cross-examined by the other side etc.

    Is it normal to self represent at an appeal (can afford legal fees)? Yes. In fact there are only very limited cases where you can bring a lawyer. That would be for someone facing a misconduct dismissal where they could be barred from practicing their profession.

    Is the suitability of SAE something that is suitable for appeal? Definitely.

    What are the chances (obviously without know the intimate details of the case)? On the information you have given us, I think you have an excellent case. It is well-established in case law that it is for the employee to decide if it is reasonable to turn down what the employer thinks is suitable alternative employment.

    I think you will be able to glean enough from these threads to draft an argument to put forward at your appeal hearing. The CIPD's Q&A section has some useful information here: www.cipd.co.uk/.../questions

    The Acas website has this to say:
    " .. if an employer offers an alternative, it is up to the employee to decide whether or not it is really suitable, based on factors such as pay, hours, location, status and working environment."
    www.acas.org.uk/index.aspx

    The CAB has a nice clear page on what to do to reasonably reject an offer of alternative employment if it isn't suitable for you: www.citizensadvice.org.uk/.../

    I hope you have a colleague you feel would be a good support at the meeting and who is good at taking notes. I would prepare by making your own notes on the reasons why the offered role is not suitable for you or drafting a statement you can read and then hand to them.

    It's probably the last thing you feel like doing, but I would investigate your union's complaints procedure.
  • in reply to Elizabeth Divver
    Just read this sorry tale and find it absolutely dreadful and appalling

    Would wholeheartedly recommend, Mark, that you make a formal written complaint to your union about their lack of proper care and support to you as a member: don’t be put off by anything any of them say to you orally - you need to exhaust their internal complaints procedure and if needs be tell them they’re in breach of contract to you as a member and you’ll sue them for all the costs of acting for yourself in the matter, including your legal expenses

    Which trade union is it, by the way?
  • in reply to David
    PS Mark

    It is a misunderstanding of employment law to say that you’ve effectively resigned as a result of allegedly refusing to accept suitable alternative employment. Your former job is without a doubt redundant and if your employer wishes to dispute that it isn’t SAE then they should dismiss you as redundant but withhold the statutory redundancy payment as well as any contractual enhancements. In my opinion they can’t have it both ways unless there are contractual limitations about payment of the enhancements that we don’t know about

    You should ask your employers to state in writing their justification for refusing to pay the enhancements and take it from there / come back to us on here.

    Unless they can rely on any contractual terms regarding the enhanced package, they’re in breach of contract not extending it to you and you or your union should challenge them on that score at appeal
  • Great answers from the community, here. I hope Mark will come back and update us on how things are going.
  • in reply to Robey
    So at this point I have a leaving date. I have also sent a formal request for appeal to the head of HR.
  • in reply to Mark
    Do not tell them about the other job offer
  • 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.
  • in reply to David
    David, there is no package enhanced or statutory.
  • in reply to Mark
    You mean they are refusing to pay the statutory redundancy, Mark?
  • 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.