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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.

  • 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

  • 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.