A nurse may have been entitled to a more favourable redundancy payment when the NHS moved her to a different post during a restructuring exercise, the Employment Appeal Tribunal has found.
Senior haematology research nurse Miss Jackson, who worked for the University Hospitals of North Midlands NHS Trust from 2010 to 2019, was in a role graded at band 6. However, following a restructuring process which saw a reduction in the number of band 6 roles in research and development, she was slotted into a band 5 role on a lower salary and with different terms and conditions.
She refused to agree to the new terms and conditions, and submitted several grievances including concerns with the way the process had been managed.
She suggested the band 5 post was not suitable alternative employment because it was a generic role that did not require specialist skills, however the NHS rejected this.
Jackson resigned, however she later withdrew her resignation after the NHS trust upheld her grievance appeal, finding that the band 5 role could not be considered a suitable alternative. She was told if she withdrew her resignation she would be given eight weeks’ notice of termination and during that time the organisation would consider if any alternative roles were available.
There was a dispute over when the eight weeks’ notice period began, with the claimant arguing it should be applied retrospectively from when she received the letter informing her that she would be placed in a band 5 role. The NHS trust disagreed, so Jackson reinstated her resignation and said she considered the situation constructive dismissal.
The trust said that Jackson had forfeited her entitlement to both statutory and contractual redundancy pay because she had left before the expiry of her notice.
An employment tribunal in 2021 upheld Jackson’s complaint of unfair dismissal and her claim for statutory redundancy pay, but rejected her breach of contract complaint which related to entitlement to contractual redundancy pay under the terms of the NHS ‘Agenda for Change’ pay and grading system.
The Agenda for Change terms state that redundancy should be calculated on the basis of one month’s pay for each complete year of service. In the claimant’s case this was £36,644.
The contract also states that NHS employees forfeit their redundancy pay if they leave employment before their notice period expires, unless an earlier release has been agreed.
Jackson appealed the tribunal’s decision, arguing that it should have considered her situation to be similar to that seen in Hogg v Dover College – a case involving a teacher whose job was changed, resulting in a pay cut and amounting to unfair dismissal. This would mean that she would be entitled to the enhanced contractual redundancy pay under Agenda for Change, she said.
The Employment Appeal Tribunal found that the employment tribunal did not properly apply the law when considering Jackson’s case.
The judgment says: “The ET needed to do a proper before-and-after comparison of the band 6 post and the band 5 post to ascertain whether the new terms were of sufficient difference to amount to a withdrawal of one contract and its replacement by another.
“On its own findings, this was not a variation of an existing contract but the withdrawal of one and the imposition of another.”
The judge directed that the case be reheard by another employment tribunal.
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The judgment added: “To be clear, the remission does not reopen the question of whether the dismissal was fair or unfair (it was unfair) or whether the claimant was dismissed by reason of redundancy (she was); it only concerns the claimant’s entitlement to a contractually enhanced redundancy payment. The parties have agreed that, if there was a Hogg dismissal on 3 December 2018, the claimant is entitled to the enhanced sum, subject to the jurisdictional cap of £25,000.”
