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  • FIRST POST
    • sadders
    • By sadders 12th Jan 18, 8:59 PM
    • 18Posts
    • 9Thanks
    sadders
    Dismissed on the grounds of redundancy
    • #1
    • 12th Jan 18, 8:59 PM
    Dismissed on the grounds of redundancy 12th Jan 18 at 8:59 PM
    I work for the NHS and my position is being made redundant. I have been offered suitable alternative employment which I turned down for versions reasons that I outlined in my formal refusal.

    Before I refused I asked for a meeting without predudice. I had two, the first with a senior manager and then with her superior. I was essentially told that they felt the offer was suitable and if I refused it I would be making myself unemployed. There would be no offer of redundancy.

    I have just had a formal letter to invite me to a formal notice of redundancy meeting.

    In the letter was the following sentence:

    Regrettably, I must advise you that the outcome of this meeting is likely to be that you will be issued with formal notice of your dismissal on the grounds of redundancy.

    What exactly does this mean? Will there be a formal redundancy with payment or am I just losing my job?

    With thanks in advance.
Page 2
    • sangie595
    • By sangie595 13th Jan 18, 8:13 PM
    • 4,552 Posts
    • 7,609 Thanks
    sangie595
    I do understand this which is why I stated that I know that I wonít get any compensation.

    I am surprised there isnít more protection.

    Because some are in a worse position doesnít mean that I shouldnít feel agrieved about my situation. Race to the bottom?

    I donít feel the role offered is suitable as it will require me to throw away 23 years of training and experience and start retraining from scratch. Essentially !!!!!!s up my career. This is of more value to me than the pay protection. I know that the law doesnít seem to rate this as a factor.

    I intended to continue my career in this department possibly to retirement. I love(d) the people and the place so this does hurt a lot.

    The new job I applied for was only after the offer of alternative employment was made. Would prefer a pay loss to throwing away my knowledge and experience.

    Despite apparently having no legal rights in this I do have every right to feel royaly fíd off about it.
    Originally posted by sadders
    You may well do. But it is not about a "race to the bottom" as you put it. It is about the fact that you have, as is your right, exercised your right to make choices. But redundancy pay is not a leaving gift. It is intended to compensate people for having no choices. You had choices. You used them. You can't have everything. You could have taken the alternative, which gave you three whole years to find a better job, in the right area, and do what you wanted. You choose not to take that. So you chose to take another job at lower pay. These were all your choices, but you seem to blame everyone and everything else for them. You had a lot of "legal" rights - better than most people do - and you chose to go another route. That's great. But don't blame others. The right to retain your pay and conditions for three years whilst learning new skills and extending your professional expertise is hardly to be sniffed at. The fact you don't see it that way is perhaps the problem.
    • sadders
    • By sadders 25th Jan 18, 7:05 PM
    • 18 Posts
    • 9 Thanks
    sadders
    Just as a follow up.

    I had a formal meeting today where I was told that I was being dismissed on the grounds of redundancy (as expected). They have allowed me to not serve my full notice so leave on 22nd of next month. No package offered.

    Realistically there is no point in going to tribunal as I am told proving that 'suitable alternative employment' is not suitable is difficult so union and no win no fee solicitors wont touch me. No point self representing and I cant afford to pay for a solicitor on what would be an expensive gamble.

    I was told by HR during the meeting that I could appeal their decision within 15 days of the meeting. It was pointed out that this would be overseen by an independent person and is mainly about points of order on the consultation process. I believe they followed the process to the letter. The only issue I have is my belief that the suitable alternative employment was not suitable. Is this something that I should take to appeal or is appeal the wrong process to go to? If its the latter I will just leave it and move on.
    • sangie595
    • By sangie595 25th Jan 18, 8:33 PM
    • 4,552 Posts
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    sangie595
    Leave it and move on. You have nothing to gain. They'd win a tribunal, almost certainly. That pay protection clause is a killer. So why would they surrender? Sometimes the better part of valour is knowing when to quit.
    • mariefab
    • By mariefab 26th Jan 18, 2:19 AM
    • 294 Posts
    • 156 Thanks
    mariefab
    I think it's worth an appeal.
    Yes, the alternate role would likely be considered suitable.
    However, depending on the reasons that you presented for refusing the role, it may not have been unreasonable for you to refuse it.

    See a few examples of the relevant caselaw below:

    http://www.bailii.org/uk/cases/UKEAT/2002/0571_02_0512.html
    http://www.bailii.org/uk/cases/UKEAT/2011/0074_11_2107.html
    http://www.bailii.org/ew/cases/EWCA/Civ/2013/1110.html
    http://www.bailii.org/uk/cases/UKEAT/2017/0293_16_0803.html
    • sadders
    • By sadders 26th Jan 18, 8:21 AM
    • 18 Posts
    • 9 Thanks
    sadders
    I think it's worth an appeal.
    Yes, the alternate role would likely be considered suitable.
    However, depending on the reasons that you presented for refusing the role, it may not have been unreasonable for you to refuse it.

    See a few examples of the relevant caselaw below:

    http://www.bailii.org/uk/cases/UKEAT/2002/0571_02_0512.html
    http://www.bailii.org/uk/cases/UKEAT/2011/0074_11_2107.html
    http://www.bailii.org/ew/cases/EWCA/Civ/2013/1110.html
    http://www.bailii.org/uk/cases/UKEAT/2017/0293_16_0803.html
    Originally posted by mariefab
    So going to appeal over a dissagreement on the suitability of SAE would be appropriate?

    Is it usual to self represent at these things?
    • MH1927
    • By MH1927 26th Jan 18, 8:51 AM
    • 16 Posts
    • 6 Thanks
    MH1927
    I'm confused? Not one of those cases found in the claimant's favour in the substantive elements of the case?

    Most appeared to be rulings that the Tribunal erred in in law and an Appeal should be allowed?
    • mariefab
    • By mariefab 26th Jan 18, 6:48 PM
    • 294 Posts
    • 156 Thanks
    mariefab
    Your employer has decided that you are not entitled to a redundancy payment and informed you that you can appeal their decision within 15 days.

    However, there are 2 separate aspects that must be considered when making a decision to refuse a redundancy payment. Both parts must be satisfied.
    1, The role must be suitable.
    You would not be appealing on the grounds that the role offered was not suitable.
    It clearly was suitable. Similar field, probably similar hours and location too and, as Sangie said, the clincher of pay protection.
    AND
    2. It must be unreasonable for you to refuse it.
    What you would be appealing is that, despite its suitability, it was not unreasonable for you to refuse the offered role.

    While part 1. is objective; part 2 is subjective.
    So, you would need to show why, from your point of view, the role was not suitable for you personally.

    e.g. 'Itís a job in the same profession (podiatry). I have always practiced minor surgery and worked with musculoskeletal conditions (23 years) I have a masters degree in that area. The job offered is in diabetic high risk. Lower grade but 3 years pay protection. Would require complete retraining. Stay or leave it will !!!!!! up my career. Within one profession itís a completely opposite pathway.' .......and whatever else you wrote in your formal refusal.

    You get to decide the grounds of your appeal, not them. For an employer's appeal you could represent yourself and/or take a union rep, or work colleague.
    The cases shown are a few examples of when employees have won a Tribunal appeal on this point. If you decide to appeal you could take copies (with the relevant sections hightlighted) to hand in at the hearing.
    Also, section 141 of the Employment Rights Act 1996
    https://www.legislation.gov.uk/ukpga/1996/18/section/141
    • sadders
    • By sadders 27th Jan 18, 10:24 AM
    • 18 Posts
    • 9 Thanks
    sadders
    Your employer has decided that you are not entitled to a redundancy payment and informed you that you can appeal their decision within 15 days.

    However, there are 2 separate aspects that must be considered when making a decision to refuse a redundancy payment. Both parts must be satisfied.
    1, The role must be suitable.
    You would not be appealing on the grounds that the role offered was not suitable.
    It clearly was suitable. Similar field, probably similar hours and location too and, as Sangie said, the clincher of pay protection.
    AND
    2. It must be unreasonable for you to refuse it.
    What you would be appealing is that, despite its suitability, it was not unreasonable for you to refuse the offered role.

    While part 1. is objective; part 2 is subjective.
    So, you would need to show why, from your point of view, the role was not suitable for you personally.

    e.g. 'Itís a job in the same profession (podiatry). I have always practiced minor surgery and worked with musculoskeletal conditions (23 years) I have a masters degree in that area. The job offered is in diabetic high risk. Lower grade but 3 years pay protection. Would require complete retraining. Stay or leave it will !!!!!! up my career. Within one profession itís a completely opposite pathway.' .......and whatever else you wrote in your formal refusal.

    You get to decide the grounds of your appeal, not them. For an employer's appeal you could represent yourself and/or take a union rep, or work colleague.
    The cases shown are a few examples of when employees have won a Tribunal appeal on this point. If you decide to appeal you could take copies (with the relevant sections hightlighted) to hand in at the hearing.
    Also, section 141 of the Employment Rights Act 1996
    https://www.legislation.gov.uk/ukpga/1996/18/section/141
    Originally posted by mariefab
    Thanks for this as it answers all my questions.
    • MH1927
    • By MH1927 27th Jan 18, 12:17 PM
    • 16 Posts
    • 6 Thanks
    MH1927
    I would actually read the case studies!

    All those provided merely ruled that the original tribunal made an error in law.

    The decisions were not reversed in the defendants favour, they erased the decision in its entirety. Meaning a entirely new Tribunal was ordered to be undertaken. In fact one of them point blank refused to reverse the decision in the defendants favour even when asked to!

    The benefit is questionable and you would be better reading the actual related original tribunal or the rerun in order to decide if you have a case. That way you will see the full case rather than a snapshot of a specific legal argument.

    I mean does anyone actually know the result of the Tribunal that was ordered to be rerun?
    • mariefab
    • By mariefab 27th Jan 18, 1:55 PM
    • 294 Posts
    • 156 Thanks
    mariefab
    The reason for sending the decisions back to the Employment Tribunal is because of the different jurisdictions of the ET and EAT.

    The ET has exclusive jurisdiction over fact finding.

    The EAT's jurisdiction covers errors in law, perversity etc. So, when the EAT finds an error in law and, as in these cases, the facts found by the ET are insufficient they have no choice but to sent it back to the ET.

    The error of law in was that the second part of the test was missed. i.e. the Tribunal failed to properly establish whether it was unreasonable for the claimant to refuse the role.

    When the decision comes back to the ET, what happens next is either they do the necessary fact finding to correct their earlier error or (more commonly) the Respondent gives up and the ET goes straight to the remedy.

    I don't have a direct link to the ET decisions, but if go here

    http://www.bailii.org/form/search_cases.html

    enter dunne v colin in case name and tick the Employment Tribunal box then search you'll find the most recent example.
    • Manxman in exile
    • By Manxman in exile 31st Jan 18, 2:57 PM
    • 1,188 Posts
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    Manxman in exile
    But the OP doesn't have an ET decision to appeal against yet, do they? If they appeal against the trust's HR decision (and the trust ignores the points of law made above) they'd still have to decide to go to an ET. In my experience NHS trusts fight battles about suitable alternative employment quite doggedly. They've got quite reliable job evaluation systems and stand to save a lot of money.


    OP - I first met my podiatrist at an NHS clinic, but he also had a private practice. He's also been a head of department in the NHS. The last time I saw him he had left the NHS entirely and only worked privately. He told me he only relaised how unhappy he was working in the NHS after he left.


    Have you considered this? (BTW I guess he's in his mid to late 40s).


    OP - I sympathise very much with your position. I was in a similar one six years ago but I was fortunate enough to get a good package as my trust could not find me a suitable alternative. (I think they were keen to see the back of me!).


    Are you in a position where you have burnt your bridges and can't go back? Can you say to your trust "I'd like to reconsider my refusal of the alternative job you offered me. Can you allow me to do so?"


    The reasons I say this are: (1) The NHS basically re-trained me when I was 50 (and the experience was difficult but also enjoyable) and (2) six years ago I would have accepted a job at a lower band to keep the pension contributions going a bit longer. I would add though, I was not in a clinical role.
    • sadders
    • By sadders 31st Jan 18, 7:05 PM
    • 18 Posts
    • 9 Thanks
    sadders
    But the OP doesn't have an ET decision to appeal against yet, do they? If they appeal against the trust's HR decision (and the trust ignores the points of law made above) they'd still have to decide to go to an ET. In my experience NHS trusts fight battles about suitable alternative employment quite doggedly. They've got quite reliable job evaluation systems and stand to save a lot of money.


    OP - I first met my podiatrist at an NHS clinic, but he also had a private practice. He's also been a head of department in the NHS. The last time I saw him he had left the NHS entirely and only worked privately. He told me he only relaised how unhappy he was working in the NHS after he left.


    Have you considered this? (BTW I guess he's in his mid to late 40s).


    OP - I sympathise very much with your position. I was in a similar one six years ago but I was fortunate enough to get a good package as my trust could not find me a suitable alternative. (I think they were keen to see the back of me!).


    Are you in a position where you have burnt your bridges and can't go back? Can you say to your trust "I'd like to reconsider my refusal of the alternative job you offered me. Can you allow me to do so?"


    The reasons I say this are: (1) The NHS basically re-trained me when I was 50 (and the experience was difficult but also enjoyable) and (2) six years ago I would have accepted a job at a lower band to keep the pension contributions going a bit longer. I would add though, I was not in a clinical role.
    Originally posted by Manxman in exile
    Current situation is that I have rejected the SAE so have been formally 'dismissed'. I have requested to not serve my full notice so leave next month. Bridges burned. I have accepted a (lower band) job elsewhere. As I have verbally accepted that I will honour it. It leaves me with half a day free where I will start a private practice and hopefully eventually move away from the NHS.
    • Sparx
    • By Sparx 31st Jan 18, 9:42 PM
    • 844 Posts
    • 456 Thanks
    Sparx
    OP try look at the positive and move on. Everything happens for a reason. There will be a silver lining somewhere, you just might not see it yet! Look forward to the future, start a new page and do your best with your new position.

    Redundancy especially when you enjoy the role and team, is a hard one to swallow. I know having faced redundancy at a job I enjoyed (and was well paid) a few years back! But over 2 years down the line, I am on a much better salary and bonus scheme, working with another great bunch of people!

    It will all come together for you.
    Last edited by Sparx; 31-01-2018 at 9:45 PM.
    • Comms69
    • By Comms69 1st Feb 18, 10:46 AM
    • 2,345 Posts
    • 2,192 Thanks
    Comms69
    Current situation is that I have rejected the SAE so have been formally 'dismissed'. I have requested to not serve my full notice so leave next month. Bridges burned. I have accepted a (lower band) job elsewhere. As I have verbally accepted that I will honour it. It leaves me with half a day free where I will start a private practice and hopefully eventually move away from the NHS.
    Originally posted by sadders
    Is that the best move?


    benefits of NHS employment as much more than pay - which in itself isn't bad anyway.
    • seatbeltnoob
    • By seatbeltnoob 1st Feb 18, 2:33 PM
    • 342 Posts
    • 80 Thanks
    seatbeltnoob
    workers have too many rights, this is why public sector just becomes more and more costly. Because they can't let anyone go, threat of tribunal, refusal to leave and demanding a role elsewhere etc.

    It's no wonder the gig economy is booming, because employers have far too much red tape.

    I'm guessing OP is in the public sector, utterly dysfunctional and unproductive. So many hangers on
    • Comms69
    • By Comms69 1st Feb 18, 3:12 PM
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    Comms69
    workers have too many rights, this is why public sector just becomes more and more costly. Because they can't let anyone go, threat of tribunal, refusal to leave and demanding a role elsewhere etc. - It's basic supply and demand. There isn't enough staff, you cant force people to become nurses or doctors. And if you make it uncomfortable they'll leave!

    It's no wonder the gig economy is booming, because employers have far too much red tape. - the 'gig' economy is far from booming. It's the lowest of the low, beyond zero hours contracts!

    I'm guessing OP is in the public sector, utterly dysfunctional and unproductive. So many hangers on
    Originally posted by seatbeltnoob


    What a strange outlook
    • Manxman in exile
    • By Manxman in exile 1st Feb 18, 3:28 PM
    • 1,188 Posts
    • 813 Thanks
    Manxman in exile
    Is that the best move?


    benefits of NHS employment as much more than pay - which in itself isn't bad anyway.
    Originally posted by Comms69

    Op may have missed the best move already - but that depends on the difference between their protected pay in the "suitable alternative" and what their new job is offering. BTW most NHS staff in redundancy situations that I knew were terrified of turning down SAE because they were afraid of losing redundancy payments.


    I'm a great advocate of the benefits of being employed by the NHS, but there's no harm in looking at building up a private practice - lots of allied health professionals in the NHS do so - but I don't know what their success rate is(!). Op - you need to find out!


    If you end up considering leaving the NHS you need to be sure of your "market". For example, over the last 30 years I have probably spent hundreds if not thousands of pounds on private physio and podiatry services (back problems, hip problems ,knee and foot problems). I did this because I had to wait six to 12 weeks for NHS physio sessions and a ridiculous time for podiatry.


    In the last three years, however, my GP has referred me twice to NHS physio (back and frozen shoulder). On each occasion the local NHS provider has 'phoned me the day after the referral to arrange an appointment the following week - and at my GP's surgery! I won't be paying privately for physio again!


    But visiting my private podiatrist sorted out my (bio-mechanical) hip, knee and foot problems.


    OP - I think attempting to build up a private practice is a good idea, but don't leave the NHS until you think you are secure.
    • Comms69
    • By Comms69 1st Feb 18, 3:31 PM
    • 2,345 Posts
    • 2,192 Thanks
    Comms69
    Op may have missed the best move already - but that depends on the difference between their protected pay in the "suitable alternative" and what their new job is offering. BTW most NHS staff in redundancy situations that I knew were terrified of turning down SAE because they were afraid of losing redundancy payments.


    I'm a great advocate of the benefits of being employed by the NHS, but there's no harm in looking at building up a private practice - lots of allied health professionals in the NHS do so - but I don't know what their success rate is(!). Op - you need to find out!


    If you end up considering leaving the NHS you need to be sure of your "market". For example, over the last 30 years I have probably spent hundreds if not thousands of pounds on private physio and podiatry services (back problems, hip problems ,knee and foot problems). I did this because I had to wait six to 12 weeks for NHS physio sessions and a ridiculous time for podiatry.


    In the last three years, however, my GP has referred me twice to NHS physio (back and frozen shoulder). On each occasion the local NHS provider has 'phoned me the day after the referral to arrange an appointment the following week - and at my GP's surgery! I won't be paying privately for physio again!


    But visiting my private podiatrist sorted out my (bio-mechanical) hip, knee and foot problems.


    OP - I think attempting to build up a private practice is a good idea, but don't leave the NHS until you think you are secure.
    Originally posted by Manxman in exile
    It's possible the NHS would commission the Op to provide the service in the community (much like GPs are) but I agree with you on the whole.


    I will just add im in a redundancy position now and fully agree regarding any SAE that comes up - though nothing been offered yet, with 7 weeks to go.
    • seatbeltnoob
    • By seatbeltnoob 1st Feb 18, 3:54 PM
    • 342 Posts
    • 80 Thanks
    seatbeltnoob
    What a strange outlook
    Originally posted by Comms69
    Learn to use forums. Do not add your comments inside quotes.
    • Manxman in exile
    • By Manxman in exile 1st Feb 18, 4:01 PM
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    • 813 Thanks
    Manxman in exile
    workers have too many rights, this is why public sector just becomes more and more costly. Because they can't let anyone go, threat of tribunal, refusal to leave and demanding a role elsewhere etc. Eh! My trust won most of their ET cases. And I know people (like the OP) who lost their redundancy payout for refusing SAE.

    It's no wonder the gig economy is booming, because employers have far too much red tape. That makes no sense at all. Can you elaborate on your thought processes...?

    I'm guessing OP is in the public sector, utterly dysfunctional and unproductive. I'm guessing then that you make no use of public services - like the NHS? Do you know what the cost would be privately? Assuming the medical staff hadn't been trained by the NHS? So many hangers on
    Originally posted by seatbeltnoob

    Sorry - missed this post!
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