Reorganisation while I was on secondment

I am currently on secondment from my substantive role as a team leader in the NHS, but I am still employed by the NHS. When I took the secondment the Trust that holds my substantive contract wrote to me to say that they could not guarantee that I would return to the same post, but that I would return to a comparable post. I am nearly at the end of my secondment. During this time there has been a reorganisation and the number of team leaders has been reduced by one. I was informed of the reorganisation. I contacted the HR Dept and was told that I had two options, to leave my secondment early and be fully engaged in the consultation about the reorganisation or stay with the secondment and see what happened when I returned, but I would still be able to be involved in the consultation. As I had several questions over the new arrangements I sent an email requesting clarification on a number of points. I did not receive any reply to the email. As I had had no response, I asked again what was happening and was offered a one to one with one of the senior managers. I was informed that my email with the questions had not been received but my questions were answered in the one to one. I was told that they would arrange for me to have regular updates with a manager to keep me informed but these never happened. With just over six months to go to the end of my secondment I asked what post I was to be offered on my return and was told they did not know. A couple of months later a consultation document was issued and meetings were held with staff to discuss the plans – I attended one of these and requested another one to one to discuss my options. I was told there were no roles on my band level except one whose terms and conditions are substantially different to the one I had previously. When I  expressed my doubts I was told that although I did not meet the essential criteria for the post they did not expect anyone else to meet it either and that I could apply for flexible working if I was unable to work e.g. weekends and late evenings. The only other post they could offer me was to drop a grade. Despite my reservations which I have expressed to the managers I have been told that they consider the role they have offered me a suitable one, and that they were of the opinion that I had decided not to be involved in any consultation about the remaining team leader roles so I was not entitled to be considered for one of them. I am of the opinion that since there is one team leader role less than when I left to take up my secondment, they have made the role redundant and I should therefore be made redundant as they cannot offer me any suitable alternative employment. They have said that was the risk I took when I went on secondment. They are now talking about the possibility of creating a third team leader role, but I no longer feel that I would want work for them as I don’t feel I can trust them to treat me fairly. Am I acting reasonably?

If the Trust does formally offer you a newly created team leader role, assuming that the offer is based on the same or similar terms and conditions that you have enjoyed in the past, this would almost certainly be considered a reasonable alternative to your previous substantive role. The decision as to whether or not you should accept the role is then ultimately a personal one for you. Whilst it would be understandable if you feel that you can no longer work for the Trust in light of recent events,  from an employment law point of view it is unlikely that you would be in a position to successfully pursue a claim against the Trust if you do not take it.

In a redundancy situation, if you refuse an offer of suitable alternative employment with your employer, you will not be entitled to a redundancy payment. However, the test is a subjective one – is this a suitable role for you personally, and this would be a matter of fact for the Tribunal looking at factors such as the status of the role, the nature of the job and its content and the terms and conditions such as pay, location, travel and working hours. It would seem that the new team leader role would be suitable but the other role, working weekends and evenings may not be.

If you refuse the posts that are offered to you, it is likely, from what you have said, that your employer would serve notice to terminate your employment, and not provide any redundancy payment. You could then present a claim to the Employment Tribunal for a redundancy payment/unfair dismissal. If you have turned down the newly created team leader role, which was identical to your previous role, you are unlikely to succeed in a claim for unfair dismissal and there will be no entitlement to a redundancy payment.

Even if a Tribunal agreed that the procedure followed by your employer and their treatment of you over the period of your secondment up to your dismissal was unfair, it is unlikely that this claim is going to have any significant value.

The main remedy that the Tribunal can provide is compensation for your loss of earnings from your employment. Your right to recover your losses is subject to an obligation to take reasonable steps to mitigate that loss, i.e. by accepting alternative employment. Therefore, the Trust would argue that you should not receive any compensation because this was a suitable role and you could have remained in employment and continued to earn a salary but elected not to do so. It would be a matter of fact for the Tribunal as to whether they thought your employer’s behaviour was so bad that this entitled you not to take this role because you had no trust and confidence, but it would be a risk.

The net result could be that the Employment Tribunal agrees that you have been unfairly dismissed, but that claim ends up being worthless.

If the Trust only offers you the weekends/late nights role as alternative employment, then you may be able to claim your redundancy payment from the Tribunal. This would depend on you being able to demonstrate that the role did not amount to suitable alternative employment taking into account the factors set out above.

It appears that at face value the role would not normally be deemed suitable. However, if the Trust do in fact modify the requirements of the role significantly then it may be a more reasonable proposition.

If your new role is a different role than your original role then the Trust is obliged to offer you a statutory trial period of four weeks, although it can be extended, after which if the parties conclude that the role is not in fact suitable, your employment would still terminate, but you should receive a redundancy payment. It may be that even though you and your employer disagree as to whether this is a reasonable alternative, you could agree a trial period anyway.

This may be a constructive approach to the issue that could prove beneficial to both parties and avoid a protracted dispute as to the suitability or otherwise of the role. You may find that the trial period provides you with some extra time to find alternative employment on your own, again avoiding any dispute with your employer and any period when you are not earning a salary.





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