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'Dismissed on the grounds of redundancy'

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.

83882 views
  • In reply to Mark:

    Hello Mark

    You can keep the argument you have to present quite clear and simple: it is up to you to decide on the suitability for the role for you. I would quote Acas to them and provide printed out pages from the Acas website.

    The training they have offered would only be relevant if you wanted the job. The fact that you would need training would seem to support the view that there is a difference in the skills and knowledge required to carry out the role on offer regardless of what the lead thinks about what people ought to know, which is beside the point. But those points seem to me to be less important than the points you have made already above about why you consider the job not suitable.

    Although you don’t feel able to counter their points, I would say what you have just said above about the difference in the types of responsibility. That seems to me to hit the nail on the head.

    Did you feel able to use your union’s complaints procedure or is it all too much at the moment? It isn’t too late to get decent support for Thursday.
  • In reply to Elizabeth Divver:

    Hi Mark

    From the information provided, I consider that there is little doubt that your employers misunderstand the applicable employment law and have acted unreasonably / unlawfully in withholding your rightful redundancy payment.

    Would recommend that you simply stick to asking them how a lesser graded post in a completely different area of podiatry amounts to suitable alternative employment. The second stage of the test - would it be unreasonable from your personal point of view to refuse it, even if it were ‘suitable’ doesn’t even apply and needn’t even be asked, but of course if it is a specialism from which you would derive little job satisfaction then even if you’d been offered a podiatry job on the same grade etc, rather obviously it wouldn’t be unreasonable for you to refuse it,

    Whatever the opinions of others, they don’t really matter, as they don’t alter the above facts of the matter.

    Just stick to that. They will probably be arrogant / stupid enough to reject the appeal, then just start the legal challenges, first via ACAS and come back here for detailed guidance.

    It’s amazing to me that a vast employer like this can be so very wrong and act so dictatorially and ineptly: don’t let them grind you down or run over you with their corporate steamroller!
  • In reply to David:

    PS

    See too for just one of very many legal commentaries

    www.harpermacleod.co.uk/.../
  • In reply to David:

    Further PS

    Suggest, Mark, that if / when they throw out the appeal fire off this ASAP
    ec.acas.org.uk/.../Create

    (Date of event asked for will be date of redundancy dismissal or date of the appeal that turned down the payment - probably the latter, but it’s no great matter provided you register the form pronto)
  • Meeting was set for 1.30 today.
    Call at 10.15 am today telling me that its been cancelled. The Podiatrist on the panel has called in (today) to inform that she is also a union rep so doesn't feel that it would be appropriate for her to take part.
    Bloody marvellous.
    They are trying to get someone else at the 11th hour but doubt they will.
  • In reply to Mark:

    What a shame that didn't occur to her until 10:15 on the day of the meeting. I can't help wondering if she read the paperwork and decided she didn't want to go anywhere near this horrendous muddle. If so, it would have been braver to come along and try to help sort it out.
  • They have found a replacement so its back on.
    Will update you later.
  • In reply to Mark:

    Mark I have been watching your post and you've had some excellent advice from others, so have nothing to contribute apart from providing my best wishes for the meeting later.
  • In reply to Mark:

    Good Luck Mark.
  • In reply to Mark:

    Best of luck Mark!
  • Wow, non of you told be how gruelling that would be!!!

    Final outcome today - deferred decision.

    The reason was that in the pack of all the paperwork from the process there was an email from the neighbouring boroughs clinical lead stating that he felt the job was suitable and that I could bring my current skills to the job. My counter was that with our cutback, the core business of the 2 departments is quite different and mine being solely a high risk department the demands placed on me would be far grater than a similar position in his department. Also to suggest that I bring and use my current skills would mean the situation is more like a de-banding and is insulting.

    They also want to speak to him about a job that they had that they felt I was unsuitable for. Again at a lower band and probably more general work to the job offered. They want to know what made the decision for me to not be offered that job.

    I have no idea if a deferred decision is good or bad or which way it will go.

    At the end the chair made a point to tell me that I had represented myself very well. Again, don't know if thats a good thing.

    Either way I owe a huge debt of gratitude to the CIPD professionals on this forum. I actually mentioned that I had taken extensive advice from CIPD professionals. Obviously didn't mention it was on an on-line forum. You have given good and sound advice and incredibly promptly.

    Huge thanks to you all.

    I will let you know the final outcome.
  • In reply to Mark:

    Hi Mark

    I’m sure if they seek their own employment law advice they’re highly likely to be informed that a job at a lower grade almost certainly does not amount to a suitable alternative, even allowing for some ‘red-circling’ for just a limited time.
  • In reply to Mark:

    Actually, just realised that I don't know what to expect from a result. What are the options? Is it an 'all or nothing' scenario or might I be made an offer of some kind?
  • In reply to Mark:

    Still waiting for a result.

    I had a letter a few weeks ago stating that they hoped to send a letter with the final outcome on the 30th March.

    Again, I don't know if the wait is a good or bad thing.
  • In reply to Mark:

    I'm sorry to hear it was gruelling, Mark. From my perspective it sounds like there may have been confusion regarding the word "suitable". A clinical lead is qualified to decide if you are "suitable" for the job in a purely clinical sense, based on your qualifications and experience.

    He or she isn't, however, qualified to determine whether it is "suitable" in a legal sense. And the caselaw is pretty clear that a role offering lower pay and at a lesser professional status is very unlikely to constitute SAE.

    A deferred decision is usually, in my experience, a fairly cowardly act that rings alarm bells. I may be doing the chair of this hearing a dis-service, because it sounds like he/she was looking to obtain some additional information. But generally, I advise a Chair that it looks like you're not prepared to look a person in the eye when awarding a finding - usually a sign that you're not ethically comfortable with the decision you're about to make.

    Hopefully, my professional colleagues here will tell me I'm being unjustifiably cynical and give many examples of good reasons for a deferred decision issued by post. But I can't think of any.

    If the finding goes against you then my (again, cyncial) suspicion would be someone higher up the chain who thinks you won't want the hassle of taking it to a tribunal and is daring you to try. From what you've told us here, though, if you are forced to decide whether to take it further, I'd advise you to do so because your case sounds pretty open and shut to me.