Dismissed on the grounds of redundancy
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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.0 -
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.0
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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.html0 -
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
So going to appeal over a dissagreement on the suitability of SAE would be appropriate?
Is it usual to self represent at these things?0 -
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?0 -
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. 'It’s 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 it’s 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/1410 -
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. 'It’s 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 it’s 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
Thanks for this as it answers all my questions.0 -
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?0 -
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.0 -
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.0
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