Ms B Browne v NHS North of England Commissioning Support Unit: 6003338/2025
JUDGMENT
[1]Under section 163 of the Employment Rights Act 1996 (“ERA 96”) the tribunal determined the claimant was entitled to a redundancy payment in the agreed sum of £ 9264.08, which sum shall be paid by the respondent to the claimant within 14 days of the date of service of this judgement.[2]The claimant did not unreasonably fail to comply with the ACAS Code of Practice on Disciplinary and Grievances Procedures 2015 and even if she did it would not be just and equitable to reduce the redundancy payment payable to the claimant, pursuant to the provisions of section 207A of the Trade Union and Labour Relations ( Consolidation) Act 1992( “TULCRA 92”).REASONS
The issues and concessions. 1.The issue for the tribunal to determine was whether the claimant was entitled to a statutory redundancy payment under Part XI ERA 96. 2.It was expressly conceded by the respondent that the claimant was dismissed by reason of redundancy within the meaning of section 136 ERA 96. 3.Both parties agreed that the amount of the statutory redundancy payment, subject to liability, was £ 9264.08. 4.The respondent disputed its liability to pay a redundancy payment in respect of the band 8(a) role, ( see below) relying on s 141(3)(b) ERA 96 and in respect of the band 7 role ( see below) relying on s 141(4) ERA 96. 5.The respondent contended that as the claimant had failed to lodge a grievance in respect of her redundancy payment , any payment awarded should be subject to adjustment under section 207A of TULCRA. The claimant expressly accepted that section 207A was engaged in these proceedings.The evidence
[6]The tribunal had before it a statement from the claimant dated 09 April 2025. 7.For the respondent the tribunal had before it a statement of Mr Azam, account director, also dated 09 April 2025. 8.The tribunal was supplied with a bundle totalling 476 pages. A reference in this judgement to a page number is a reference to a page in the bundle. 9.The tribunal should briefly comment upon the evidence given by the witnesses. The tribunal was satisfied that both Mr Azam and the claimant genuinely sought to assist the tribunal in their evidence. Mr Azam answered questions simply and directly. At times, the claimant was less impressive, for example when answering directly questions put to her by Mr Sugarman. 10.However Mr Azam was significantly handicapped because almost all of his statement was based on what he had been told or what he had read. He was not a member of the Suitability Assessment Panel ( see below) who determined the band 8a and band 7 posts were suitable employment for the claimant. He was not a decision maker. He was formally a professionally registered social worker by profession. He was not a qualified pharmacist. Where differences existed between the evidence of the claimant and Mr Azam on the requirements of the band 8 (a) and band 7 posts and the deployment of pharmacy skills, the tribunal found the claimant’s evidence to be more compelling. The factsBackground
[11]The claimant was born on 21 February 1986. She was therefore aged 38 as at dismissal. 12.The claimant commenced employment on 01 April 2020 with the respondent. Her continuous employment began in the NHS on 02 May 2017 but her reckonable service, for the purposes of a redundancy payment, began on 03 August 2009. 13.As at termination the claimant was employed as a band 8a medicines optimisation specialist pharmacist working on a 0.6WTE basis. 14.The claimant lived in Gateshead and her work base was in Newburn in Newcastle on Tyne. As part of her duties she visited two GP surgeries, one in Monkseaton and the second in North Shields, about 2 to 3 times a week. She also regularly visited a care home in North Tyneside.. 15.The claimant worked Monday, Tuesday, and Wednesday from 8. 30 until 4.30. 16.The claimant is a married woman. Her husband works as a business analyst. 17.The hours of the claimant’s substantive role suited her domestic childcare arrangements. The claimant is the mother of three children, who at the time, were aged 3, 5 and 8. 18.The claimant was an ambitious woman and held a band 8a post for some years and was working towards becoming a consultant pharmacist. 19.The tribunal ought to explain at this stage a little about banding in the NHS and what is known as Agenda for Change. Agenda for change. 20.A job evaluation study, known as agenda for change is utilised in the NHS for the grading of almost all jobs, the principal exceptions being doctors and very senior managers. 21.The system evaluates individual jobs by means of a variety of factors including skills, competencies, communication , analytical skills and judgement, and qualifications and provides a numerical score setting out the jobs “worth”. The score in turn is translated to a pay band. 22.The lowest band is band 1. The higher the band, the more senior and better paid is the role . The highest band is band 9. 23.In the NHS pay progression can occur by two means.• One, pay can be increased in accordance with a cost-of-living rise.• Secondly if an employee passes through what is known as a gateway in their band they are entitled to an increase in salary. 24.At all material times the claimant had passed through all the gateways for her band 8a post. Thus going forward she would not be entitled to an increase in salary under this provision, only a cost-of-living rise. The claimants existing post, pre redundancy. 25.The claimant’s duties and responsibilities were set out in the documentation (96 to 100) and they should be referred to for their full terms and effect and were not challenged, but can be briefly summarised as follows: – a) Medicines optimisation support provision to allocated GP practices in relation to prescription engagement schemes (“PES”); b) Clinical interventions such as prescribing, disease-modifying anti-rheumatic drugs (“DMARDs”) monitoring, and liaising with specialist teams; c) Intermediate care support and service development; d) Medication reviews and patient contact, support, and some training with GP practice teams including on prescribing and patient safety; and e) Care home work in the North Tyneside area. 26.Part of the claimant’s duties included undertaking clinics at GP surgeries to see patients and, if necessary, to prescribe or adjust their existing medication. The redundancy process. 27.The respondent commenced a redundancy consultation exercise with the claimant, and others on 20 November 2023. 28.As part of the restructure there was a reduced need for a number of band 8a medicine optimisation specialist pharmacists. All post holders were offered the opportunity of applying for the limited number of new band 8(a) pharmacy posts in the new structure. 29.The redundancy was driven by the fact that a 20% reduction in the running cost allowance had to be made by the respondent for the year 2024/2025, rising to 30% for the following year. 30.The respondent relied in the restructuring exercise upon a document entitled Change Management Policy as part of the redundancy exercise under which a post one band lower was regarded by the respondent as suitable alternative employment. 31.As part of the redundancy process individual consultation meetings took place, including with the claimant. 32.The claimant applied for a band 8a post in the new structure but was informed on 19 March 2024 that she was unsuccessful. 33.The tribunal found that effectively her substantive post was dis-established from this point (309) (although in fact she continued to perform her duties whilst redeployment was examined.) 34.However she was told she could be considered for a band 7 pharmacist role ( i.e. a less senior position). The claimant was also told there was an opportunity of temporary redeployment supporting a contract in intermediate care which was a band 8(a) post. The claimant rejected that post as it was temporary with no guarantee of an extension (334). 35.Further consultation took place with the claimant on 15 April, 25 April and 13 May 2024. 36.At the meeting on 15 April the claimant was formally offered a band 7 pharmacy post (325). 37.The claimant indicated on 25 April 2024 that she did not regard the band 7 post as suitable employment and gave reasons (332/333). 38.Further communication took place. 39.At the meeting on 13 May 2024 the claimant was advised: –(a) The band 7 role was considered by the respondent to be suitable alternative employment as she met the essential requirements for the role and in accordance with the respondents change management policy one band lower was considered suitable alternative employment. (b)The claimant would be offered an extended three-month trial period in a band 7 role. (c) The claimant could be temporarily redeployed to a band 8 (a) role for six-months supporting a contract in intermediate care which would then transition into a trial period for the band 7 role; (d) If the offer of a trial was refused, then the reasons provided by the claimant for the refusal would be escalated to the respondent’s executive team for a decision and a referral to what was known as the Suitability Assessment Panel. 40.The claimant was required to respond within 24 hours, an extremely short and in the tribunal’s view unreasonable period. 41.By an email dated 14 May 2024 the claimant confirmed her refusal of the band 8 (a) temporary role because it was a temporary contract and the band 7 role (repeating in almost identical terms much of what she said previously) for the following reasons : – a) The claimant could not use her advanced pharmacist skills and qualifications (prescribing, complex structured medication review with patients, service development) in comparison to her specialist role as a band 8(a) pharmacist. The claimant enjoyed this part of her role; however this would be removed if working as a band 7 pharmacist; b) The claimant could consider a non-patient facing role, but only if this was a band 8 (a) role; c) The reduced ability of the claimant for career progression if she moved from band 8 (a) to a band 7 even with limited pay protection; d) Increased risk of being placed at a disadvantage with internal/external roles ( i.e., again career progression) e) The allocated geographic location of the new post effected the claimant’s work life balance and travel commitments, as the location for the band 7 post included the county of Northumberland ,in addition to North Tyneside; f) The claimant had recently completed further learning and advanced pharmacist credentialing, and she hoped to increase her specialisation in long term condition management and take up other advanced pharmacist work with patients. However, as the band 7 role was non-patient facing this would not give her the opportunity to do this. (g) By taking the band 7 role the claimant saw this to be a demotion as she had many years of experience as a specialist band 8 (a) pharmacist. 42.On 29 May 2024 the claimant was advised that both the respondent and the Suitability Assessment Panel viewed the band 7 suitable because the claimant: – (a)The claimant met the essential criteria for the role;(b) The claimant was eligible for pay protection and in accordance with the respondent’s own internal policy a role one grade below a substantive grade was regarded as suitable.(c) Further suitable alternative employment would be sought;(d) The area of travel was reasonable.(e) The role offered had been deemed suitable by the respondent’s independent Suitability Assessment Panel. 43.The claimant was advised in writing that it she refused the band 7 post she would waive her right to a redundancy payment (424/425). 44.The Suitability Assessment Panel did not include a qualified pharmacist on it when the decision were taken as the suitability of the band 7post for the claimant. 45.Mr Azam, in answer to a question from the tribunal, accepted he was not able to explain why the Suitability Assessment Panel found the band 7 post was suitable for the claimant. 46.On or about 10 June 2024 (354) Ms Barber ( a member of HR) sent an internal e-mail to others, copied to the claimant which stated the claimant had accepted a trial start date in a band 7 role from 01 July although there appeared to be confusion whether the claimant could start the trial or it could run concurrently with an intermediate care role. She asked for internal advice. It was not clear to the tribunal what that subsequent advice was. The tribunal found this evidence unclear and confused. 47.On 18 June 2022 the claimant spoke with Ms Caulfield (the claimant’s line manager) and indicated she had accepted a role outside the respondent and requested a reduction in her 3 month notice period. 48.A contemporaneous email of 18 June (366/367) showed the claimant had accepted an offer of a diabetes clinical pharmacist with an organisation called Morph, which she had accepted with a start date of 03 August 2024. 49.Following further discussions the claimant agreed to trial the band 7 role with a start date of 01 July 2024. However the tribunal accepted the claimant’s evidence that the meeting arranged to discuss the trial had been cancelled and she was told the reason being that senior management had received requests for references and as it was clear she had secured another role the trial would not take place. 50.The respondent called no evidence to dispute that assertion. Whilst Mr Sugarman was critical of the claimant that she had not expressly mentioned previously, the tribunal considered, having regard to the timeline, the claimant’s account was completely credible. It was logical and probable the respondent would not wish to spend time and energy on a trial period for a band 7 when it knew the claimant was leaving. Thus the claimant never started the trial and it was effectively cancelled by the respondent. 51.In the intervening period respondent advised the claimant by email of 20 June 2024 ( 369 to 372). 52.It stated:- “Since being informed you were 'at risk' of redundancy following the NECS Reset consultation and filling of posts process, North of England Commissioning Support (NECS) has been seeking suitable alternative employment for you. A Band 7 Pharmacist role has been identified as suitable alternative employment for you, and as such you have recently commenced a 3-month trial in this role. We very much hope the trial will be a success. If however the trial is not successful, you are informed your employment with NECS will terminate on the grounds of redundancy on 19 September 2024, at the end of your 3 months’ notice period commencing 20 June 2024.” 53.Just to be clear the claimant had not started any trial in the band 7 post on 20 June. In addition under the statutory scheme any trial would be for four weeks unless the parties agreed a longer period for retraining. No such agreement was reached. 54.On 02 July 2024 the claimant informed the respondent she was rejected the trial role for the reasons she had already given previously. The tribunal found as a fact she never started it. 55.Thereafter the claimant continued undertaking some of her existing band 8 (a) duties, preparing handovers and participating in professional development. 56.On 08 July 2024 the claimant spoke to Ms Barber, and explained her reasons for refusal. The claimant asked about a reduced notice period and by an email of 09 July 2024 (379) Ms Barber confirmed that a reduced notice period could be agreed however the claimant would not be entitled to redundancy payment after leaving the respondent. 57.The claimant left the respondent’s employment on 26 July 2024. The tribunal’s findings in respect of the relative posts Temporary band 8a 58.The claimant was offered this post for a period of some six months. It was always clear that the post was temporary. 59.The respondent indicated that another post might come up during the redeployment, and in any event at the end of six months the claimant would be found a band 7 role. 60.In all respects the temporary band 8(a) role was identical to the claimant’s substantive role. 61.The claimant rejected the post for two reasons: –• firstly it was a temporary post• secondly she was being asked to do the work of what was previously done by two Band 8 (a) s, although the tribunal found this to be far less significant in the claimant’s thought processes than the stability of the post. Band 7. 62.The tribunal found that the claimant’s existing band 8(a) post was more senior than that of a band 7 post and as such the band 7 post represented a demotion to the claimant. 63.If the claimant had taken the band 7 post her salary would have been protected at band 8(a) for five years on a marked time basis. In other words her salary would not increase for five years. It she remained as a band 8(a) her income would increase over five years as she would have received cost of living rises. 64.Mr Azam fairly accepted that to his knowledge none of the Suitability Assessment Panel took into account when assessing suitability the effect of placing the claimant on band 7 in terms of her pension entitlement ,given the fact she was relatively young and had a significantly number of years of service available to her before retirement. 65.Closely related to the former point pay protection was on a marked time basis. In real terms the claimant’s pay would fall with the passage of time compared with her substantive post. Mr Azam indicated he did not know whether the Suitability Assessment Panel took this into account when it found the band 7 post was suitable for the claimant. 66.Whilst the tribunal accepted there were similarities between the work undertaken by a band 8(a) the band 7 the roles had significant differences, hence the difference in grading. Although a band 8(a) would be able to undertake the role of a band 7, the converse was not true. 67.A band 8 (a) would report to a band 8(b). Had the claimant taken the band 7 role she would have been reporting to a former colleague, with whom she was previously on the same level namely a band 8(a). Mr Azam fairly accepted that, that could reasonably appear to the claimant to be a demotion. There would have been a loss of status, a matter of importance to the claimant who was and is very status conscious. 68.In the claimant’s substantial role as a band 8(a) she would undertake clinics in doctors’ surgeries and prescribed. In the band 7role she would not undertake surgeries or prescribe. 69.Whilst Mr Azam’s evidence was that the claimant could still keep her prescribing skills up-to-date by means of study and continuing professional development the tribunal did not consider that compensated for the loss of practical prescribing. The tribunal found skills were best retained and enhanced by real-life application rather than by only theoretical study. 70.As a band 8(a) the claimant would have trained some of the band 7’s. As a band 7 she would now be working with those colleagues who she trained, on the same level. Whilst the tribunal noted that the band 7 was a new post there was a ringfencing arrangement to allow existing staff to apply for posts in the new restructure. Thus the tribunal considered there was a real possibility the claimant would be working with staff she had previously trained. 71.As a band 8(a) the claimant worked in a small defined geographical area which suited her child care needs. As a band 7 she will be allocated GP practices in Northumberland, one of the largest and more remote counties in England. Northumberland stretches to Berwick in the north and Hexham in the West. The claimant was never told which GP practices she would be allocated. The tribunal found the claimant’s concern that she was likely to have to undertake significantly more travel, was on the information available to her, well-founded. 72.The tribunal expressly found the band 7 post was different from the claimant’s substantive post. Submissions 73.Mr Sugarman helpfully submitted a written skeleton argument upon which he amplified orally. Save for what the tribunal has called the timing issue ( where both parties made legal submissions) he concentrated on the issue of suitability and the reasonableness or otherwise of the claimant refusal. 74.Ms Akers also concentrated upon suitability and the reasonableness or otherwise of the claimant refusal. She made reference to in Devon Primary Care -v- Readham 2013 IRLR 878 as support for her proposition that even an offer in the same Agenda for change Band did not necessarily amount to suitable employment and emphasised what she said was the failure of the respondent to engage in the claimant’s subjective views of the offers of alternative employment. 75.The tribunal means no disrespect to both counsel but has not reproduced each and every argument in its subsequent judgement. The mere fact a submission has not been expressly referred too such not be taken to mean that it was not given full consideration. The law and discussion. Was there a dismissal? 76.Under S.136(1)(a) ERA 96 termination of an employment contract by the employer, either with or without notice, constitutes a dismissal for redundancy purposes. 77.The tribunal recorded in its findings of fact the agreement reached for the claimant to leave her employment with the respondent early. The threat made to her that she would lose her redundancy payment was simply wrong. 78.Mr Sugarman quite properly conceded that there was a dismissal within the meaning of section 136. Even without that concession the tribunal would have so found because if an employer agrees that an employee can leave before the expiry of the notice period, then there is still a dismissal by the employer as in reality all that has happened is the employer has agreed to substitute an earlier termination date, see McAlwane v Boughton Estates Ltd 1973 ICR 470, NIRC. Alternative employment 79.Sections 135, 136(1) and 141 must be read together having regard to the express wording. The sections provide:- 80.Section 135 135 The right. “(1) An employer shall pay a redundancy payment to any employee of his if the employee— (a) is dismissed by the employer by reason of redundancy, or…. (2) Subsection (1) has effect subject to the following provisions of this Part (including, in particular, sections 140 to 144, 149 to 152, 155 to 161 and 164).” Circumstances in which an employee is dismissed. Section 136(1) “(1) Subject to the provisions of this section and sections 137 and 138, for the purposes of this Part an employee is dismissed by his employer if (and only if)— (a) the contract under which he is employed by the employer is terminated by the employer (whether with or without notice),” 81.Section 141 ERA 96 provides:- (1)This section applies where an offer (whether in writing or not) is made to an employee before the end of his employment— (a) to renew his contract of employment, or (b) to re-engage him under a new contract of employment, with renewal or re-engagement to take effect either immediately on, or after an interval of not more than four weeks after, the end of his employment. (2) Where subsection (3) is satisfied, the employee is not entitled to a redundancy payment if he unreasonably refuses the offer. (3)This subsection is satisfied where— (a)the provisions of the contract as renewed, or of the new contract, as to— (i) the capacity and place in which the employee would be employed, and (ii) the other terms and conditions of his employment, would not differ from the corresponding provisions of the previous contract, or (b) those provisions of the contract as renewed, or of the new contract, would differ from the corresponding provisions of the previous contract but the offer constitutes an offer of suitable employment in relation to the employee. (4)The employee is not entitled to a redundancy payment if— (a) his contract of employment is renewed, or he is re-engaged under a new contract of employment, in pursuance of the offer, (b) the provisions of the contract as renewed or new contract as to the capacity or place in which he is employed or the other terms and conditions of his employment differ (wholly or in part) from the corresponding provisions of the previous contract, (c ) the employment is suitable in relation to him, and (d) during the trial period he unreasonably terminates the contract, or unreasonably gives notice to terminate it and it is in consequence terminated. 82.In summary the effect of the statutory provisions is that if the employee accepts an offer, he or she is treated as not having been dismissed and the question of a redundancy payment will not arise. This is subject to the employee’s statutory right to a trial period of four weeks where the job is different from the one that the employee previously carried out, or where it is the same job but the terms and conditions are different. If the employee decides against the job and leaves during the trial period, he or she is treated as having been dismissed when the old job came to an end and as having refused an offer of new employment. 83.If the employee refuses an offer of new employment, he or she will lose the right to a redundancy payment if the offer constituted an offer of suitable employment and the refusal was unreasonable. He or she will still, however, be regarded as having been dismissed by reason of redundancy. 84.If the offer was for unsuitable employment, or if it was suitable but the employee’s refusal of it was reasonable, then he or she will be entitled to a redundancy payment. Timing 85.The authors of the IDS handbook on redundancy opine that an offer of suitable employment must be made after notice of termination is served, as if not, there is no not a valid offer. Thus if there is no valid offer the issue of suitability does not begin to arise. 86.In support of that proposition the authors made reference to the cases of McHugh -v- Hempsall Bulk Transport Ltd EAT/410/96 and East London NHS Foundation Trust v O’Connor 2020 IRLR 16, EAT. The tribunal drew both counsel’s attention to those authorities, prior to the commencement of hearing evidence. 87.Both counsel addressed the tribunal on the above point in submissions. 88.Ms Akers submitted that both cases were correctly decided, were binding on the tribunal, and looking at the factual chronology in this case ,no valid offer was made after the notice of termination and as such the question of suitability and unreasonableness of refusal did not even arise. 89.Mr Sugarman submitted that the starting point was the statute. McHugh was an unnecessary statutory gloss and in any event did not support the proposition suggested by the authors IDS and was limited to its own unusual facts . It made no sense, he said, not to have regard to offers of alternative employment made pre notice of dismissal. Even if he was wrong on that point he submitted an offer of alternative employment was made of the band 7 post in the letter of dismissal. He accepted the band 8 (a) post was out of scope if the offer had to be made on or after notice of dismissal. 90.Turning to the East London case he submitted that was the case that was looking at the issue of statutory trial periods and was not relevant to this case. The weight and conclusion the authors of the IDS handbook placed on East London was misleading. 91.The tribunal started by looking at the case of McHugh. 92.Mr Sugarman is right the facts was somewhat unusual. In essence Mr Mc Hugh worked for Hempsall as an HGV driver. Hempsall decided to sell part of the business to a company known as Robertshaw. Prior to the sale of part of the business Robertshaw met the claimant, and other drivers, and offered them employment when the business was due to be taken over on 01 January. Mr Mc Hugh did not accept the offer of employment made by Robertshaw and was told by Hempsall that he would remain employed by them. This was prior to the sale. On 09 February Mr Mc Hugh was dismissed by Hempsall by reason of redundancy. The case was unusual in the sense that Hempsall had never offered the claimant alternative employment but sought to rely upon the offer made by Robertshaw. 93.The EAT placed particular weight on the fact that when Mr Mc Hugh rejected the offer made by Robertshaw his employment had not been terminated and he had no reason to believe it was going to be terminated and it considered the proper approach was to look at the situation as at termination on 09 February. 94.As the EAT said “the matter might have been different, indeed probably would have been different, if [Hempsall] had terminated Mr McHugh’s contract, with or without notice on or before 1 January 1990, or Robertshaw’s offer had been a job which would have taken effect immediately after Mr McHugh’s employment with the respondent ceased.” 95.The quotation is strictly obiter. On a proper reading this tribunal found it offered some, but not strong, support for the proposition of the authors of the IDS handbook. 96.The tribunal then turned to the decision in East London NHS Foundation Trust v O’Connor 2020 IRLR 16, EAT, ( in which Mc Hugh was not cited). 97.This lengthy judgement explored in detail a number of issues ( including what amounted to a statutory trial period, a matter of relevance in this case) but the EAT held that the statutory trial period could only arise following a dismissal, as defined by section 136. 98.Again the case was unusual in that much of the argument centred upon the issue of whether or what was said to be a trial period offered to the claimant was in law a statutory trial period. 99.Mr.O’Connor was told that his role as psycho-social intervention worker at the Trust was to be deleted with effect from 03 July 2017 and he was offered a trial period as care coordinator in another team. The EAT agreed with an employment tribunal that this did not amount to a statutory trial period under section 138 because Mr O’ Connor had not been dismissed beforehand. The requirement under S.136(1)(a) was that the employee be notified (by some form of communication or conduct) that the contract under which he or she was employed was being terminated. That was not necessarily the same as a notification that the role in which he or she was currently employed under that contract was coming to an end. 100.The tribunal concluded East London was on point and binding on this tribunal. 101.Here the band 8(a) post was offered prior to the notice of termination dated 20 June 2024.It had been deleted from the respondent’s structure after the claimant’s refusal but before notice was given. The offer did not satisfy the provisions of s141(1) (b) namely “with renewal or re-engagement to take effect either immediately on, or after an interval of not more than four weeks after, the end of his employment. 102.The offer of the band 7 post also preceded the notice of termination. The reference in the letter of termination to the band 7 offer cannot avail the respondent as it was for a trial period of 3 months. A statutory trial period is limited to 4 weeks unless extended for retraining and there was not a hint of this here. Thus even if Mr Sugarman was right that an offer was made, it was not a statutory offer. 103.It follows therefore the tribunal does not even reach the stage of considering whether the offers were suitable or the reasonableness or otherwise of the claimant’s refusal. The tribunal was compelled to find in the claimant’s favour on the timing point. 104.However if it was held elsewhere the tribunal was wrong on the timing point it went on to consider suitability and reasonableness. Suitability and reasonableness. 105.The respondent must show both that the job offered was suitable and that the claimant’s refusal of it was unreasonable, see Jones and anor v Aston Cabinet Co Ltd 1973 ICR 292, NIRC. 106.The words ‘suitability’ and ‘reasonableness’ are questions of fact for the tribunal. The words are ordinary English words with no special legal significance. 107.The question of suitability of an offer of alternative employment is an objective one whereas the reasonableness of the claimant’s refusal depends on factors personal to the claimant and must be considered by the tribunal from the claimant’s point of view 108.Whilst the tribunal must answer to separate questions, one of suitability of the employment and secondly the reasonableness of the refusal, the tribunal is entitled look at factors which may prove, on analysis, to be common to both, see Spencer and Griffin -v- Gloucestershire County Council 1985 IRLR 393 Band 8(A) 109.As the tribunal has already noted the claimant rejected this post firstly because it was temporary and secondly because of the potential increased work volume. 110.Mr Sugarman argued, and the tribunal accepted that looking at matters objectively the post offered to the claimant was suitable, save in respect to the issue of duration. 111.It further accepted that merely because a post was temporary as opposed to permanent did not automatically lead to the post not being suitable. 112.Each case was fact sensitive. Here the claimant enjoyed secured employment over a number of years as a qualified professional. She was being asked to surrender the security of a permanent post for one, at best was likely to last for six months. The respondent has not shown that objectively that was suitable. 113.Even if the tribunal was wrong on that finding the respondent has not demonstrated that subjectively the claimant’s refusal was unreasonable. 114.Whilst the respondent contended had the claimant taken the temporary band 8(a) role there was the prospect of other suitable employment the tribunal regarded the claimant had good grounds for doubting that would occur for the following reasons.• Firstly the trajectory of the respondent was one of the need to make further savings, an extra 10% having to be found in the following financial year. The prospect of an increase in band 8 (a) posts was therefore unlikely.• Secondly the fact that almost immediately after the claimant rejected the temporary band 8(a) post it disappeared from the respondent structure further pointed to the fact that the prospects of it becoming permanent or a permanent band 8 (a) post being found for the claimant were limited. 115.Mr Sugarman submitted that the claimant was not acting reasonably as if she had taken the temporary post it would have provided her with six months more work and a slightly increased redundancy payment. With respect to him the tribunal considered the claimant was acting reasonably in looking for alternative permanent employment following the dissolution of her substantial post. There were attractive positions available. There would be no guarantee that such post would have been available in some six months’ time. The claimant and a husband, financial responsibilities and a growing family and the claimant was entitled to prioritise permanent employment. 116.The tribunal was not persuaded the possible additional work was a material factor and the claimant herself accepted that in questions from the tribunal. Band seven 117.The tribunal had no hesitation whatsoever in determining that the respondent has not shown that the band 7 post was objectively suitable. 118.Objectively it was a demotion. 119.Objectively the claimant lost status. The assertion, with respect to Mr Azam was the claimant had not provided reasons why she believed she had lost status was nonsensical. It was as plain as a pike staff. 120.Objectively there would be increased and unspecified travel 121.Objectively the claimant would lose the ability to practice prescribing. 122.Objectively the claimant would lose money and potentially enhanced pension effects because she was on a marked time basis. 123.The Suitability Assessment Panel considered the band 7 was reasonable because “in the opinion of the panel the claimant transitioning from a band 8 (a) role to a band 7 role is not a demotion, but an opportunity to leverage the skills in a different capacity”( Mr Azam proof paragraph 88). It takes not a moment to realise the absurdity of that assertion and particularly the phrase “ leverage the skills in a different capacity”. The posts were clearly different on the respondent’s own national job evaluation grading. Given the hierarchical nature of the banding it was obviously a demotion given the claimant would now have to report to a colleague who was previously one of her peers and would work on the same level as some of the staff she had previously trained. 124.Subjectively the claimant’s concern that for career promotion, seeking posts at band 8(b) or 8 (c) level would be more difficult if she was in a substantive band 7 post than in a substantive band 8 (a) was in the tribunal’s judgement a reasonable conclusion. If she taken a band 7 post it would have hindered her career prospects. 125.Subjectively the claimant was entitled to take the view that whatever the respondents internal policy said as regards suitability (one band below was deemed to be suitable) the matter was not governed by policy but by her particular circumstances. Section 207A 126.“(1)This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2…… (3) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that— (a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies, (b) the employee has failed to comply with that Code in relation to that matter, and (c) that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the employee by no more than 25%”. 127.A claim for a redundancy payment, a section 163 ERA 96 claim , is listed in schedule A2. Thus section 207A is engaged. 128.Ms Akers argued that whilst she conceded the code of practice applied to a redundancy payment (although not a redundancy dismissal) there should be no reduction as it was not just and equitable so to do. Unsurprisingly, Mr Sugarman urged that given there was a total failure of the claimant to engage, at all, in any grievance process there should be a reduction of 25% of any award made. 129.The tribunal considered that it was required by Parliament to approach the argument via a two-stage process. 130.The first question was whether the claimant’s failure to comply with the code was a reasonable. 131.If so, the second question was whether it was just and equitable in all circumstances to reduce the award. The reference to “just and equitable” allowed the tribunal a considerable latitude provided it took into account all relevant facts. 133.The tribunal approached the first question by considering the will of Parliament. The purpose of encouraging both employers and employees to utilise the ACAS code in respect of a grievance was to seek to resolve work place disputes without the necessity of tribunal proceedings. That is a wholly laudable and proper aim. 134.However section 207A was not designed to provide an unexpected windfall for either an employer or an employee. 135.The claimant had already indicated, well before she was dismissed, that she did not regard the band 8a post or the band 7 as suitable employment. 136.Her views had been clearly expressed and reasoned. 137.The respondent had the opportunity to examine the claimant’s reasoning by means of its Suitability Assessment Panel. It had done so and rejected the claimant’s assertions. 138.If the claimant had issued a grievance the practical consequences would have been that she would have still left of the respondent’s employment. The respondent would have still have refused to pay her a redundancy payment. A grievance process would have been meaningless. 139.All that would have happened was the claimant would have been put to the trouble of submitting a grievance ( when she had already decided to leave) and the respondent would have had to divert hard pressed resources to investigating a grievance, the subject of which it was already aware of, and on which it had already ruled. 140.Thus the tribunal concluded that in the particular circumstances of this case the claimant’s failure to comply with the code was not unreasonable. 141.It the tribunal was wrong on that point it then addressed the second question, namely whether it would be just and equitable to reduce the claimant’s statutory redundancy payment. 142.The purpose of a statutory redundancy payment was to assist an employee in transitioning from the situation where they lost their employment, through no fault of their own, until they obtained other employment. It is a minimum statutory entitlement and the tribunal considered it would not be just and equitable to reduce this sum further. It has not lost sight of the fact that the claimant had alternative employment to go to but that was mere happenstance. Had Parliament considered that the statutory redundancy scheme should be limited if an employee obtained alternative employment it would have said so but it has not. Thus the tribunal concluded, again emphasising that it was looking at these particular circumstances, that it was not just and equitable to reduce the award. Footnote. 143.The tribunal noted the claimant was not pursuing an application for a contractual redundancy payment under the NHS collective terms and conditions known as Agenda for Change before it. Thus what was agreed under that policy as suitable alternative employment did not bind the tribunal in determining what was suitable alternative employment for the purposes of the statutory redundancy scheme.