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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50147
Experience:  Qualified Solicitor
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I have worked in the nhs for nearly 34 years and in my current

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I have worked in the nhs for nearly 34 years and in my current trust for 28 of those. I have risen up the ranks to a relatively senior position. This makes me expensive to make redundant but also makes redundancy desirable for me. I have been turned down repeatedly for voluntary redundancy on the grounds my post is essential .
However my boss had formally put me on the 'at risk of redundancy' register as he wants to disestablish my post and give my roles to others. At the moment u have not been given notice of redundancy only at risk, my job has not been disestablished and the consultation had not been formally concluded.
HR are being very hostile. They don't want to pay a settlement but there are no jobs in the trust to redeploy me to. They are insisting I look for, apply and accept any jobs that come up in the nhs that they say are suitable whether I agree it not. They say because I don't gave notice yet I have no rights and they can force me into whatever they like.
Can they make leave under these circumstances when my job still exists? Do I really have no rights ?
What should I be doing to increase the chance of a settlement and do I have to cooperate with this redeployment process when the jobs they are forcing me to apply for are not even theirs to offer
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Are there actually any suitable jobs within the Trust that you could do?

JACUSTOMER-v7u8u8ut- : No. Nothing. I am a specialist oncology pharmacist. No other posts similar and no other pharmacist posts in the trust either. I'm not qualified for anything else. Similar graded jobs generally need professional registration in a different profession or a management qualification which I don't have
Ben Jones :

Hi, sorry I was offline by the time you had replied yesterday. At present you appear to be at risk of redundancy, where there is a potential of redundancy but this has not yet been confirmed. The employer could proceed with the redundancy, or they could find ways to try and avoid it and leave you in your post or another suitable one.

As far as the suitability of other employment is concerned, then if there is a redundancy situation, an employer has a duty to offer those employees at risk any suitable alternative employment (“SAE”) that may exist at the time. The objective is to keep the employee in a job rather than make them redundant. Therefore, if an employee accepts an offer of SAE, their employment will continue in the new position and they would lose their entitlement to a redundancy payment.

If the offer is considered unsuitable and the employee refuses it, they will be made redundant and still receive redundancy pay. However, if the offer was suitable and the employee unreasonably refuses it, they would effectively be resigning and will lose their entitlement to redundancy pay.

So the main issue is what makes an offer suitable and when can an employee reasonably refuse it. The most common factors that would make an offer unsuitable are:

  • Job content/status – drop in status, substantial changes in duties, etc.

  • Pay and other benefits – significant drop in earnings/benefits (e.g. basic pay, bonuses, overtime, sick pay, holidays)

  • Working hours – change in shift pattern, removal of overtime, extension/reduction of working hours

  • Change of workplace – new location making it unreasonable to travel to the new place of work

  • Job prospects – going from permanent to temporary work, becoming self-employed or being employed on a fixed-term contract.

Where an offer of alternative employment has been made and its terms and conditions are different to the employee's current terms, they have the right to a 4-week trial period. If during the trial period they decide that the job is not suitable they should tell their employer straight away. This will not affect their employment rights, including the right to receive statutory redundancy pay.

So the key really is whether there is other suitable alternative employment for you to do. If no such positions exists then eventually the employer will have to make you redundant. However, if SAE positions exist and you unreasonably refuse them, that is when you would be at risk of losing any redundancy entitlement. So consider the options carefully and if you are certain that no SAE is available, then you simply have to wait in your current post until the consultation and redundancy process finishes and assuming that your job no longer exists at the end of this, the employer would have no other option but to make you redundant.

Hope this clarifies your position? If you could please let me know that would be great, thank you

JACUSTOMER-v7u8u8ut- :

Thanks Ben,

JACUSTOMER-v7u8u8ut- :

thats helpful

JACUSTOMER-v7u8u8ut- :

I'm being told that the provisions of the employment act dont apply because i havent been given notice of redundancy so they dont have to give me a trial period if they dont want to and if the job they consider is suitable is in a different trust they can't anyway becasue the recruitment process is whatever the new trust says it is and so far other trusts have shown no willingness to accommodate any requirements of my trust.

JACUSTOMER-v7u8u8ut- :

They also say that they are being more flexible with respect to whats considered suitable and expect me to be the same. In effect that means they consider suitable to be whatever suits them in getting rid of me as quickly and as cheaply as possible with litte if any consideration of my personal circumstances.

JACUSTOMER-v7u8u8ut- :

Do i have to be more flexible just becasue it suits them? My view of what is suitable doesnt change becasue of their changing agenda. They are telling me that jobs that are not within my professional nor within my specialty nor even in the same pay grade are suitable. Is it for them to justify this or for me to refute it? If I refuse to apply for a job they say is suitable and /or if i refuse to accept one that is offered it has been suggested that that would lead to disciplinary action. Can they do this? If I refuse a job do they have to justify why they think I am being unreasonable or fis it for me to justify why i am being reasonable.?

JACUSTOMER-v7u8u8ut- :

And finally if I refuse a job claiming it is unsuitable and that my refusal is reasonable and but i know other jobs are potentially coming up in the future that would be probably more suitable can they dismiss me on the basis of the first job i refuse.

JACUSTOMER-v7u8u8ut- :

Many thanks

Ben Jones and 2 other Law Specialists are ready to help you
Hi, the employer’s understanding of the law in this case is somewhat misguided. To fall within the statutory scheme, an offer of alternative employment must be made before the employee's employment under the previous contract ends (sections 138(1)(a) and 141(1), Employment Rights Act 1996). So such an offer would be required before your employment terminates and it could happen either before or after you have been given notice of redundancy. Whether they are being flexible with their understanding of suitability is irrelevant – you still have your own rights in that respect that are determined by case law as explained in my original response. It is for you to determine the suitability of the offers and explain to them why you believe they are unsuitable. If they disagree and refuse to pay redundancy because of differing opinions then it would be for you to challenge this, as far as taking it to the employment tribunal if necessary. You cannot force them to agree with your decision but if the tribunal agrees with you then their decision would be binding on the employer. Finally, they can only take into consideration jobs that are actually available at the time the offers are made. It is no good to state that other suitable jobs may come up in the future once your current job ends and your employment terminates – as mentioned above any offers are only valid if they are made before your current employment is terminated by the employer.
Customer: replied 3 years ago.
Thanks Ben. On the last point if they give me notice I would have to be given 12 weeks. I expect a job to become available within the next few weeks which is a much better fit than the one they are trying to force me into. Do I have to accept the first one offered?
No you do not have to accept the first one that was offered if you do not think it is suitable. If during your notice period something more suitable comes up then you can accept that instead
Ben Jones and 2 other Law Specialists are ready to help you
Customer: replied 3 years ago.

Hi Ben,

following on from this the consultation period about the restructuring that was going to result in my job being disestablished ended before christmas and the final document sent to the trust board shortly afterwards. I wasn't told this until i asked but even now my post hasn't actually formally been disestablished. My boss says he doesn't have to until i find another job and is prepared to wait for as long as it takes. there are no jobs and are unlikely to be any. I have been at risk now for 6 months and it is taking its toll on my physical and mental health which doesn't seem to be a concern for the trust at all. So much for a duty of care for health and wellbeing. I am expected to carry on as if everything is normal but finding it increasingly difficult to do that. My skills and expertise and self confidence and emotional strength and resilience etc etc are taking a severe battering and i can't keep this up much longer. I suspect the plan is to wait for me to resign because i can't stand it any longer and then they won't have to pay me a redundancy payment.

Is it legal to keep me in this holding position indefinitely, especially when it is causing me such personal damage? Is there anything i can do to encourage the trust to move forward to some resolution ?

Hello, thanks for getting back to me. Unfortunately your question has expired as you must post any follow up queries within 7 days of the date of the original question. If you need any further help on this subject please post it as a new question on our site - you may start it with 'for Ben Jones' so that I get it and deal with it as fast as I can. Many thanks