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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
Satisfied Customers: 38731
Experience:  Expert in UK Employment Law
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I have been working for my employer for 17 years as a registered

Resolved Question:

I have been working for my employer for 17 years as a registered nurse. In December 2011 I was seconded to the post of Acting Day Care Sister/Lead Nurse day services. The organisation is now going through reconfiguration and both my substantive role and my seconded role are being 'discontinued', and I am facing redundancy. I am questioning about suitable alternative employment as the jobs that are on offer are ring fenced for us (9 staff in total) - all bar one - at higher grades. Two other nurses are in the same grade as my substantive role so the 3 of us could be fighting for one job. If I decide not to apply for a post at a higher grade it has been suggested that there will be no redundancies, and that staff will be facing dismissal. I would appreciate your advice please - I am 61 years old in July this year, and was not successful when I applied for a higher grade job in December 2012. Phew..
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. For now please let me know how long you have worked there.

Customer:

17 years - commenced 26 January 1996

Customer:

17 years - started employment 26 January 1996

Customer:

I cant see your answer Ben - can you help ?

Customer:

where is the answer

Ben Jones :

Apologies for the slight delay, I experienced some temporary connection issues earlier. Ca you please clarify what you actually wish to achieve - do you not want one of the higher grade jobs and wish to be made redundant instead?

Customer:

Yes Ben - in March this year I asked if I could reduce my working week from 30 to 22.5 hours. My employers said they were unable to meet this request so I said I would like to retire from my post. My line manager wrote "I made you aware that if you choose to retire now at the end of March, you may have an effect on any reundancy option that may arise from reconfiguration over the coming months' .

Customer:

 


Sorry, that may not be clear but I wish to be considered for a redundancy package

Ben Jones :

Are you still going ahead with the retirement plans at this stage?

Customer:

If I am not made redundant then yes, I will decide to retire, - BUT I am in line for a redundancy package of £11,000 + and I am very keen to secure this if I can as my state pension is delayed until late 2014 and my occ. pension is at best modest.

Ben Jones :

When a redundancy situation arises, an employer has a duty to consider and offer the affected employees any suitable alternative employment (“SAE”) that may exist at the time. The objective is to keep the employee in employment rather than make them redundant.


 


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 still keep their entitlement to redundancy pay. However, if an offer of SAE has been made and the employee unreasonably refuses it, they would lose their entitlement to redundancy pay.


 


The factors that would usually make an offer unsuitable or a refusal reasonable are as follows:



  • Job content and status – e.g. drop in status or level, substantial differences in duties, etc.;

  • Pay and other benefits – e.g. significant drop in earnings, including basic pay, bonuses, overtime, sick pay, holiday entitlement, etc.;

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

  • Change of workplace – e.g. if a place of work changes and the employee’s personal circumstances make it unreasonable for them to travel to their new place of work.

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


 


If the employer makes an offer of alternative employment, where the terms and conditions differ from their current ones, the employee has the right to a 4-week trial period in that job, which can be extended by mutual consent. If during or immediately after the trial period they decide against taking the job then they should tell their employer straight away. This will not affect their employment rights, including their right to receive statutory redundancy pay.


 


So the main issue here is whether you have been offered a SAE position (including the opportunity to apply for one), and whether you have either been unsuccessful in it, or have reasonable refused it. If either apply then you would still be entitled to your redundancy. However, if you have been offered such a position and unreasonable refuse to accept it, you can jeopardise your redundancy.


 

Customer:

One of the posts would be considered suitable as it pretty much mirrors my seconded position - but none of the new posts marries up to my substantive role as that job is completely discontinued across the 3 sites I work in. It seems that by accepting this secondment I may have to apply for one of the newly formed posts

Ben Jones :

How long was the secondment supposed to be for?

Customer:

initially for 6 months but it has been extended for 2 month periods at a time - I have just signed another 'Extension of Secondment' which ends on 31 July 2013. This means I will have been on secondment for 19 months..

Ben Jones :

you would be made redundant from your substantial position so any SAE positions would need to be compared to that one

Customer:

Thank you Ben - I wondered if that might be the case. The correspondence cites my seconded position as being discontinued and my own substantive role is not listed. Perhaps I would be eligible for redundancy after all. May I quote our conversation Ben to my employer?

Ben Jones :

Yes you may certainly do so but just remember that this is not formal legal advice. As to your situation it would be treated as a two-step process - initially your secondment is being discontinued, as a result you would return to your substantive post. If that is then also being discontinued you would then be at risk of redundancy from that position

Customer:

I understand and thank you - perhaps I should decline any further extension to my secondment now

Ben Jones :

yes you may do so

Ben Jones, Solicitor
Satisfied Customers: 38731
Experience: Expert in UK Employment Law
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