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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was involved in a disciplinary hearing at work, the outcome

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I was involved in a disciplinary hearing at work, the outcome was that I would be downgraded as a band 5 staff nurse to a band 2 nursing assistant. In the letter I received they offered me a post as a band 2 in a certain ward and that I would take up this position when I was "fit to resume". My GP Has signed me of for another 6 weeks. I have now received a telephone call from my union rep to say they cannot hold this position for me for that length of time and that if I didn't start this post soon they would dismiss me from NHS Tayside. The letter I received did not specify any timescale as to when I should take up this offer. Can they do this

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know how long you have worked there.


I have worked for NHS Tayside for 10 years

Thank you for your patience. The employer cannot just demote you without having the contractual right to do so because otherwise it would amount to a breach of contract as it amends your existing terms and conditions. So it is important to check whether this is allowed in your circumstances.

Whilst they have tried to offer you a lower post, you can accept that now and remain off sick - the employer cannot force you to simply return from work and start working. They can still place you in that position and you can remain off sick, starting in it once you are fit to return.

In terms of dismissal then you will also have certain rights. If an employee has been continuously employed with their employer for at least 2 years they will be protected against unfair dismissal. That means that to fairly dismiss them their employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed.

According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances.

If you believe that the employer has just gone and dismissed you without a proper reason or procedure then you can challenge that - first by appealing and then by considering claiming for unfair dismissal in the employment tribunal.

I hope this has answered your query and would be grateful if you could please take a second to leave a positive rating. Your question will not close and I can continue providing further advice if necessary. Thank you
Customer: replied 4 years ago.

for Ben

Just got a letter through today stating if I don't take up this new position on the 22nd july they will dismiss me

you can consider going down the grievance route to challenge this formally. If this does result in dismissal then whilst you cannot prevent that, you can challenge it in the employment tribunal by submitting a claim for unfair dismissal and seeking compensation.

As your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do. I can then continue providing further advice and answer follow up questions if needed. Thank you.
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