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Jenny McKenzie
Jenny McKenzie,
Category: UK Employment Law
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Experience:  10 Years of experience in Employment Law and HR
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I work for an NHS Trust. They are reducing their workforce.

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I work for an NHS Trust. They are reducing their workforce. I am a band 8c consultant psychotherapist and I am one of 11 band 8c psychologists/psychotherapists who are being invited to apply for only 4 8c posts that will remain after the reorganisation. However, in my opinion, these 4 posts are not suitable alternative jobs for me as I work as a specialist group psychotherapist and the 4 posts are clinical management jobs. We are told that if we refuse or choose to not apply for these 4 posts, our redundancy rights may be at risk. Is this correct in law. I thought that employees at risk of redundancy had to be offered suitable alternative employment, not asked to apply for jobs that might not be suitable alternative employment.
Hello I am already assisting you with this on the other thread. In order to advise you in need to understand the reasons you do not consider the alternative post to be suitable?
Customer: replied 3 years ago.

I am a specialist group psychotherapist. For 24 years I have been running a group psychotherapy service. I don't do any clinical management of Trust wide psychological services. The 4 jobs are Trust wide clinical management jobs that I have no experience of doing, for example, organising recruitment, auditing, research etc. I just treat patients who have complex mental health problems using my expertise as a psychotherapist. I also supervise other clinicians who do group psychotherapy.

So by doing the other post would you lose your specialism and find it harder to find specialist work in the future?
Customer: replied 3 years ago.

I would lose my specialism (if I could do these jobs) which wouldn't necessarily prevent me from getting another specialist job. But that isn't the point. I am 67 and ready to quit the job. I would like to be made redundant and don't want to be forced to apply for jobs that I can't do and don't want to do, on the threat of losing redundancy rights if I don't apply.

The legal position is that if you are offered a suitable alternative post and refuse it then you lose your right to redundancy pay. A suitable alternative post is suitable from the point of view of the employee. The fact that you don't want to lose your redundancy pay given your age would not make the post offered unsuitable, it has to be something about the job in terms of its perceived status, pay and grade or location which makes it unsuitable. You potentially have an argument on the basis that you would lose your specialism or for some other reason are unable to perform the job due to lack of experience but if the employer says that it considers that it is a suitable offer and refuses to pay you redundancy pay on that basis then you would have to appeal for redundancy pay and then bring a claim in the Employment Tribunal who would judge whether it amounts to a suitable alternative based on the evidence before it. This might be taking a risk given that the grade and pay and status if the same.

If you have any further questions please do ask. If I have answered your question I would be grateful if you would be so kind as to give my answer a positive rating as I am not otherwise credited for my time. Thank you and all the best.
Customer: replied 3 years ago.

Do I risk losing my redundancy rights if I don't apply for one of the 4 jobs? Thats my my most pressing concern, as I don't feel competent to do those jobs. That must be different to being offered a suitable alternative job and then refusing it.

The normal position is that you only lose the right to redundancy if you are 'offered' a suitable alternative position.

The correct approach for the employer would be for the employer to select based on information they already have but it is not uncommon for a competitive interview to take place. The problem with not attending the interview is that you are indicating, from the outset, that you would not be prepared to take the suitable alternative work so the employer can argue you lose the right to redundancy. If you attend the interview and are unsuccessful the position would be clear that you are entitled to redundancy pay.

You could raise a grievance about the fact that they are selecting on the basis of competitive interview if you wish.

If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.
Customer: replied 3 years ago.

Thank you. Thats helpful to know. There are 3 full time jobs. One relates to a patient group that I have no current expertise in, so there would be no point in applying for that post I would assume. The 2nd job requires the post holder to travel around the whole Trust and appears to have no clinical case load as well as requiring managerial expertise that I don't possess. My job is purely clinical and is local to Watford. So would that be seen as not broadly equivalent to my current job? The 3rd job is the only one that perhaps the Trust could argue is broadly similar (but in my opinion it isn't) but I don't meet the person specs in terms of management experience etc. Do I have to apply for all 3 jobs in order that the Trust can't say I have refused suitable alternative employment and what about the 3rd job where I don't meet the person specs?

Hi the trust is wrong in stating that you will lose your redudnancy entitlement if you don't apply for all 3 jobs. The first 2 are clearly not suitable alternatives and the third, as you say, is questionable.

I would suggest you submit a grievance saying you consider none of the 3 are suitable alternatives and that if your post is made redudant you would like redundancy pay. Set out the reasons in the letter why they are not suitalbe in terms of experience and location and loss of specialism. State that if you are not paid redundancy you will have no alternative to bring the matter to the employment tribunal. Hopefully that will lead the trust to reconsider its position. If not then you will have to decide whether you are prepared to apply for the 3rd job. If you are not paid redundancy based on your failure to apply for the first 2 jobs then that would most certainly be considered unfair as they are not suitable alternatives.

I would be grateful if you would be so kind as to take the time to rate my answer as I am not otherwise credited for my time. Thank you and all the best.
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