Unfair dismissal, redundancy and notice pay: e case file has been referred to an Employment Judge

withlove

 Dear MSE,

My wife has filed a Unfair dismissal, redundancy and notice pay case against a large NHS Foundation Trust.  The case file has been referred to an Employment Judge.
We have received the Grounds of Resistance and the Trust's solicitors are trying to stop the Judge hearing the complaints.

Some background:

November 2016: My wife joined the Trust on a substantive contract for 22.5 hours p/w as a band 3 administrator.

April 2018: She took a position of band 5 Personal Assistant to the Director of Commissioning on a full time permanent basis.

February 2019: My wife had a meeting with HR where she expressed her concern regarding the Director’s misogynist behaviour which made her feel demised and humiliated in front of her colleagues. The director would tell my wife to make tea for him and his colleagues in a waitress manner where she would arrive to the meeting room with a notepad and take orders of the tea/coffee preference, then would go to the kitchen and prepare them. She would put the refreshments on a tray and travel across a number of departments to the meeting room, colleagues on the way looking at her in pity. No other PA was required to do that. She was never asked to do that in her previous roles. Her colleagues started to call her a tea lady and said it was time for her to invest in a trolley and an apron. She found that humiliating. When she complained about this behaviour to the HR, no action was taken and the director continued this behaviour. In fact it got worse as he became even more patronising and intimidating.

March 2020: Following the start of the pandemic, my wife was sent to cover shifts with the Major Incident response team for the person who had to self-isolate. She was not notified of redeployment until she queried, a some time later, of when she was going back to her role in commissioning. At that point the Director of Commissioning informed my wife that her job was ‘gone’, as he put it, meaning that her job did not exist anymore as there were no meetings that needed to be scheduled, there was no work for her role and she was redeployed. She then continued to work with the Major Incident response team, while remaining under her contract as a PA to the Director of Commissioning.

May 2020: She informed the Director of Commissioning that she was accepted by a local University to study an undergraduate full time psychology course, starting in September 2020, and therefore would not be able to work full time hours any more. As we have children to support, who were 8 and 10 at the time, she needed desperately to remain in employment while studying, therefore she asked the Director for reduced hours. At that point the Director told her that he could not offer her a part time position and that she would need to resign. He informed my wife that the role she was employed for was a full time role and needed to remain so. The director did not put this in writing and she was scared to ask for it in writing.  He also did not inform her of the correct procedure to of requesting flexible working which she was not aware about. He dismissed her request completely. My wife also asked the Deputy Director of Commissioning if her hours could be reduced, to which she responded that she was certain that this request could be accommodated. She later changed her position when in the meeting with the Director of Commissioning, saying there was no job for my wife.

August 2020: my wife approached the Director again asking if she could stay in Commissioning on a reduced hour basis, and if not, could she be transferred to the Major Incident team, who were happy for her to join them on a part time permanent basis, as the pandemic was still ongoing and there was plenty of work. However, the Director informed my wife that he could only approve a fixed term six month position which would give her time to find another job. This decision was approved by the Investment Committee, chaired by the Director himself.

At that meeting he told my wife that she needed to resign that same day and re-apply for the position with the Incident team. At that point she felt extremely intimidated and rushed to resign, worried that if she did not, it will affect her job opportunity with the Incident team, her references and possibly any future positions in the future. 

My wife resigned on 6 August 2020. She later found out that she should have been offered an equivalent part time position to my previous full time position in the Commissioning department or somewhere else in the Trust, but should have not been forced to resign.

June 2021: As the pandemic was starting to ease, work within the Incident response team diminished and she was moved to support the Operations Directorate for two days per week, while her full time colleague Staff Bank colleague stayed. My wife's contract was extended till 30 September 21.

On 14/9/21 She was notified by email that her contract would be terminated.

On 30/9/21 My wife was in her office trying to access my ESR platform to view her payslip but was unable to log in.

When she contacted ESR team to find out what the issue was, my wife was notified that her access was deactivated because she was no longer an employee of the Trust.

She was then told that in order to reactivate her ESR account she had to contact Payroll.

When my wife contacted Payroll, she was notified that her contract ended on the 29th September and her Staff Bank contract ended with it, and that they needed to re-start the full employment process from the beginning in order to reactivate her account and continue her Bank duties. My wife was not aware until that point that she needed to re-register with Bank and would need to go through the full recruitment process as a new starter, which would take weeks. As a result of this, my wife lost her Bank shifts that were already scheduled for her and her income. She was later told that she should have received a leaver’s email from Payroll, explaining what her next steps should be if she wished to remain an employee with the Staff Bank. My wife could not find such email, she contacted Payroll, asking to inform her when the leaver’s email was sent to my wife.

The recruitment process for Staff Bank was started on 30/9/21.

Following a lengthy recruitment process, my wife was able to restart her Bank duties on 20/10/21.

My wife had an HR meeting on 12 November 21 and she was trying to establish how it was possible for her to be dismissed so quickly, without a proper notice or a meeting to discuss her redundancy. HR said told her that it was absolutely legal as she was on a fixed term contract. They offered their apology, but no compensation, which she requested.

My wife had another HR meeting on 7 February 22 to discuss unfair dismissal. HR informed her that she couldn’t claim unfair dismissal as she was late to submit her claim. She asked for redundancy pay but they said that was out question too, as she willingly resigned and accepted the fixed term. My wife did not willingly resign. As a gesture of goodwill, they offered to pay my wife 8 weeks late notice compensation.

As a consequence of my dismissal my wife suffered not only extreme stress and financial struggle, that affected her and our young children immensely, but also lost the holiday and sickness allowance, that my wife worked hard to gain over the years with the Trust. We believe her dismissal fell outside of the categories set out in the Employment Rights Act 1996. When my wife approached HR, they asked her whether she had any written proof of her claims. My wife highlighted that it was extremely difficult for her to obtain in writing from the Director, who preferred only to have verbal meetings. HR offered to pay my wife the late notice compensation equivalent of two months pay on a 15 hour basis. My wife declined, as she believes the compensation should have been greater. My wife asked for HR to put that offer in writing to which they initially agreed. However, as she did not receive a response for a few days, my wife sent a reminding email, to which HR responded that they would not be putting that in writing.

The dismissal and the consequent loss of Staff Bank position has affected all of us deeply. My wife still suffers from extreme anxiety caused by this unfairness. My wife feels no one was willing to point her in the right direction when she approached them. My wife trusted her employer to be fair and honest with her and I did not query most of their actions. Furthermore, when she felt something was wrong, she was scared to question or dispute it. My wife is a mature undergraduate student, we have two children, one of them autistic, and she suffers from depression and neurological condition, and she is in the process of being diagnosed with autism herself.  Ukraine war was has affected her deeply. All of these issue have be piling up on top of her and she has not had enough strength to pursue this claim - but thankfully her claim has been accepted and with your help I hope we can get justice for my wife.

Where do we go from here??  

Thank you so much MSE 

Brie

Is there something that has been missed between 6/8/20 & 6/21?

My wife resigned on 6 August 2020. She later found out that she should have been offered an equivalent part time position to my previous full time position in the Commissioning department or somewhere else in the Trust, but should have not been forced to resign.

June 2021: As the pandemic was starting to ease, work within the Incident response team diminished and she was moved to support the Operations Directorate for two days per week, while her full time colleague Staff Bank colleague stayed. My wife's contract was extended till 30 September 21.

Also there's a lot of confusion about who this is about as at points you talk about "my dismissal" and other times "my wife's dismissal". It makes it very hard to know what has happened.

TELLIT01

I can't advise on the way forward, but am concerned about the amount of very specific information in the OP.  It is far better to keep information as general as possible.

Marcon

Far too much information being put in the public domain. OP, suggest you delete the post and give ACAS a ring and talk to their Helpline.

withlove

Hi Brie & others,

The gap, which you highlight, is the time that my wife is working in the incident team on a temporary basis.

On 6 August my wife's boss told her to resign and offered her a six month temporary contract, stating that it will give her some time to find a permanent job. My wife felt intimidated and scared that if she does not resign, it would affect her references and future positions. After the meeting, she approached her new manager, explaining that she was told to resign. The new manager found that strange and confirmed that she was happy to employ my wife on a permanent basis from the 14th September 2020 and prepared the direct transfer from one team to another documentation. However, she was notified tat that would be an option and that my wife's contract will end on the 14th September and if she wants to get another job she will have to through the full recruitment process. Which is what happened.

My wife had to apply for the new temporary six month position that was offered to her, have an interview and reprocess all recruitment documents as she was a completely new starter. This process was lengthy and she was able to start work again on the 16th September 2020.  

When the 6 months expired, my wife's contract was extended until the end of June 2021, she was then moved to another team on a temporary basis, until the end of September, 2021.  My wife kept asking if her contract would be extended beyond September,  they wouldn't confirm, but gave her the impression that it could be because of the pandemic, which was still on going.  At that time there were two of them working in the office, my wife on a temp contract and another lady of a staff bank.

At no point during any of these moves was my wife consulted,  There was no discussion about my wife being redeployed.  My wife did not know that she was being redeployed.

Two weeks before the end of September my wife was notified by email that funding for my wife had been cut, yet, the staff bank member was kept on.  My wife had a contract at that time, since 2016, but her boss simply wanted to get rid of her.

I acknowledge the comments stating that I have used too much information in a public forum.  I have not revealed any locations, names, or geography whatsoever.  I apologise if I have infringed any forum rules but it reads ambiguous to me.  I am happy to re post the original post but not sure what to omit to generalise further.

Thanks for your time reading.

Thanks,

With Love

Undervalued

withlove said:

 Dear MSE,

My wife has filed a Unfair dismissal, redundancy and notice pay case against a large NHS Foundation Trust.  The case file has been referred to an Employment Judge.
We have received the Grounds of Resistance and the Trust's solicitors are trying to stop the Judge hearing the complaints.

Some background:

November 2016: My wife joined the Trust on a substantive contract for 22.5 hours p/w as a band 3 administrator.

April 2018: She took a position of band 5 Personal Assistant to the Director of Commissioning on a full time permanent basis.

February 2019: My wife had a meeting with HR where she expressed her concern regarding the Director’s misogynist behaviour which made her feel demised and humiliated in front of her colleagues. The director would tell my wife to make tea for him and his colleagues in a waitress manner where she would arrive to the meeting room with a notepad and take orders of the tea/coffee preference, then would go to the kitchen and prepare them. She would put the refreshments on a tray and travel across a number of departments to the meeting room, colleagues on the way looking at her in pity. No other PA was required to do that. She was never asked to do that in her previous roles. Her colleagues started to call her a tea lady and said it was time for her to invest in a trolley and an apron. She found that humiliating. When she complained about this behaviour to the HR, no action was taken and the director continued this behaviour. In fact it got worse as he became even more patronising and intimidating.

March 2020: Following the start of the pandemic, my wife was sent to cover shifts with the Major Incident response team for the person who had to self-isolate. She was not notified of redeployment until she queried, a some time later, of when she was going back to her role in commissioning. At that point the Director of Commissioning informed my wife that her job was ‘gone’, as he put it, meaning that her job did not exist anymore as there were no meetings that needed to be scheduled, there was no work for her role and she was redeployed. She then continued to work with the Major Incident response team, while remaining under her contract as a PA to the Director of Commissioning.

May 2020: She informed the Director of Commissioning that she was accepted by a local University to study an undergraduate full time psychology course, starting in September 2020, and therefore would not be able to work full time hours any more. As we have children to support, who were 8 and 10 at the time, she needed desperately to remain in employment while studying, therefore she asked the Director for reduced hours. At that point the Director told her that he could not offer her a part time position and that she would need to resign. He informed my wife that the role she was employed for was a full time role and needed to remain so. The director did not put this in writing and she was scared to ask for it in writing.  He also did not inform her of the correct procedure to of requesting flexible working which she was not aware about. He dismissed her request completely. My wife also asked the Deputy Director of Commissioning if her hours could be reduced, to which she responded that she was certain that this request could be accommodated. She later changed her position when in the meeting with the Director of Commissioning, saying there was no job for my wife.

August 2020: my wife approached the Director again asking if she could stay in Commissioning on a reduced hour basis, and if not, could she be transferred to the Major Incident team, who were happy for her to join them on a part time permanent basis, as the pandemic was still ongoing and there was plenty of work. However, the Director informed my wife that he could only approve a fixed term six month position which would give her time to find another job. This decision was approved by the Investment Committee, chaired by the Director himself.

At that meeting he told my wife that she needed to resign that same day and re-apply for the position with the Incident team. At that point she felt extremely intimidated and rushed to resign, worried that if she did not, it will affect her job opportunity with the Incident team, her references and possibly any future positions in the future. 

My wife resigned on 6 August 2020. She later found out that she should have been offered an equivalent part time position to my previous full time position in the Commissioning department or somewhere else in the Trust, but should have not been forced to resign.

June 2021: As the pandemic was starting to ease, work within the Incident response team diminished and she was moved to support the Operations Directorate for two days per week, while her full time colleague Staff Bank colleague stayed. My wife's contract was extended till 30 September 21.

On 14/9/21 She was notified by email that her contract would be terminated.

On 30/9/21 My wife was in her office trying to access my ESR platform to view her payslip but was unable to log in.

When she contacted ESR team to find out what the issue was, my wife was notified that her access was deactivated because she was no longer an employee of the Trust.

She was then told that in order to reactivate her ESR account she had to contact Payroll.

When my wife contacted Payroll, she was notified that her contract ended on the 29th September and her Staff Bank contract ended with it, and that they needed to re-start the full employment process from the beginning in order to reactivate her account and continue her Bank duties. My wife was not aware until that point that she needed to re-register with Bank and would need to go through the full recruitment process as a new starter, which would take weeks. As a result of this, my wife lost her Bank shifts that were already scheduled for her and her income. She was later told that she should have received a leaver’s email from Payroll, explaining what her next steps should be if she wished to remain an employee with the Staff Bank. My wife could not find such email, she contacted Payroll, asking to inform her when the leaver’s email was sent to my wife.

The recruitment process for Staff Bank was started on 30/9/21.

Following a lengthy recruitment process, my wife was able to restart her Bank duties on 20/10/21.

My wife had an HR meeting on 12 November 21 and she was trying to establish how it was possible for her to be dismissed so quickly, without a proper notice or a meeting to discuss her redundancy. HR said told her that it was absolutely legal as she was on a fixed term contract. They offered their apology, but no compensation, which she requested.

My wife had another HR meeting on 7 February 22 to discuss unfair dismissal. HR informed her that she couldn’t claim unfair dismissal as she was late to submit her claim. She asked for redundancy pay but they said that was out question too, as she willingly resigned and accepted the fixed term. My wife did not willingly resign. As a gesture of goodwill, they offered to pay my wife 8 weeks late notice compensation.

As a consequence of my dismissal my wife suffered not only extreme stress and financial struggle, that affected her and our young children immensely, but also lost the holiday and sickness allowance, that my wife worked hard to gain over the years with the Trust. We believe her dismissal fell outside of the categories set out in the Employment Rights Act 1996. When my wife approached HR, they asked her whether she had any written proof of her claims. My wife highlighted that it was extremely difficult for her to obtain in writing from the Director, who preferred only to have verbal meetings. HR offered to pay my wife the late notice compensation equivalent of two months pay on a 15 hour basis. My wife declined, as she believes the compensation should have been greater. My wife asked for HR to put that offer in writing to which they initially agreed. However, as she did not receive a response for a few days, my wife sent a reminding email, to which HR responded that they would not be putting that in writing.

The dismissal and the consequent loss of Staff Bank position has affected all of us deeply. My wife still suffers from extreme anxiety caused by this unfairness. My wife feels no one was willing to point her in the right direction when she approached them. My wife trusted her employer to be fair and honest with her and I did not query most of their actions. Furthermore, when she felt something was wrong, she was scared to question or dispute it. My wife is a mature undergraduate student, we have two children, one of them autistic, and she suffers from depression and neurological condition, and she is in the process of being diagnosed with autism herself.  Ukraine war was has affected her deeply. All of these issue have be piling up on top of her and she has not had enough strength to pursue this claim - but thankfully her claim has been accepted and with your help I hope we can get justice for my wife.

Where do we go from here??  

Thank you so much MSE 

Has your wife received any proper legal advice on this matter?

What you describe could amount to constructive unfair dismissal. However this is a notoriously difficult claim to win (only a few percent of such claims are won at tribunal, although obviously some others are settled at an earlier stage).

Also, claims for damages for mental health conditions arising from employment disputes are also very difficult to win. It is far harder to prove than, say, a physical injury caused by faulty equipment. The problem is that there are 168 hours in a week so even a "full time" job only amounts to less than a quarter of them. The employer will suggest that other issues in the non working 120 or more hours may have been the main cause.

She really needs to see a specialist solicitor if she is intending to proceed with this. And no, the ACAS help line is not a substitute.

Even if the solicitor fees she has a good case, do not underestimate the strain involved if pursuing this if the employer chooses to fight. 

FBaby

Your account of the situation is not easy to read but ultimately it seems to come down to whether your wife should be entitled to redundancy.

Your wife was employed FT on a permanent contract. She wanted PT as even before discussing it, she'd already signed up for studying. She failed to apply for a flexible work arrangement. This is her fault, it would have been available on the trust intranet and it's not for her boss to tell her. I think the trust also has up to 6 months to respond.

She failed to follow the proper procedure and was then told that the job couldn't be done PT and was told that if she couldn't fulfill her job as per contract, she would need to resign.

She could have enquire about the process at this stage but didn't and in any case, it is likely that the process fir consideration would have taken her longer than the start of her course.

She chose to resign. That was her decision, and she would struggle to convince anyone that she did under duress rather than because she just wanted to do her course.

She was then told about a fixed term opportunity. It seems very unlikely that considering the job was purely in place because of Covid that it was ever a permanent role. Either she misunderstood or someone gave her wrong advice. Having to apply for any new role is the correct procedure. She would then have known the job was fixed. It was extended, she was then seconded to another role and then both came to an end and that was that. The trust offered some compensation probably because they indeed failed to offer a meeting to discuss the situation. It is not very clear why she thought she was on the bank though.

The issue is whether this constituted redundancy or not. Was the role terminated completely or did it continue and someone else took it? If so, no redundancy. It's the post that qualifies the redundancy, not the person  

To be so, she will need to have gained 2 years of continuous service with no more than 1 week in between roles. So the question is whether she went straight from her band 3 role to her band 5 one. If so, she has gained continuous service then. It sounds like she also have gained it her band 5 role?

If that's the case, and indeed the role she was doing during her fixed term ended completely, she would like fit the requirements to claim redundancy since 2016 (or 2018 if there was a break of more than a week in between).

I wouldn't go to court at this point but point HR to the staff terms and conditions and redundancy.