K Huntbach v Leeds and York Partnership NHS Foundation Trust: 6004626/2024
JUDGMENT
The claimant is entitled to a statutory redundancy payment and the respondent shall pay to him the sum of £11, 895.50”REASONS
[1]This was a claim for a statutory redundancy payment following the claimant’s dismissal from the respondent Trust. The dispute between the parties was whether the claimant’s entitlement was extinguished because he had, on the respondent’s case, unreasonably refused an offer of suitable alternative employment. We agreed the issues for me were twofold: 1.1. Was the offer to the claimant “suitable alternative employment”? 1.2. Did the claimant act unreasonably in refusing it?[2]I heard oral evidence from five respondent witnesses (Drs Harrison and Ramsden, Mr Skinner (who heard the claimant’s appeal), Mr Rowley (latterly the claimant’s line manager) and Ms Hanwell – chief finance officer and deputy chief executive), and then from the claimant. I had a hearing file of some 700 pages. After the evidence I had written submissions on behalf of the respondent, developed orally, and oral submissions on behalf of the claimant.[3]The statutory provisions – agreed with the parties to apply - were Section 135 of the Employment Rights Act 1996 (entitlement to a redundancy payment) and the relevant parts of Section 141 (this was agreed not to be a Section 141 (4) case or a 141(3)(a) case): 141Renewal of contract or re-engagement. (1)This section applies where an offer (whether in writing or not) is made to an employee before the end of his employment— (a)...(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—..... (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]Mr Haywood also helpfully provided me with Mrs Readman v Devon Primary Care Trust UKEAT/0116/11/ZT and Mid and South Essex NHS Foundation Trust v Mrs Stevenson and others EA-2022 – 000591 – AS, which confirm the correct analysis and approach to the issues identified above.Findings
[5]The respondent is a mental health trust employing around around 3500 people. It is the main provider of mental health and learning disability services for (predominantly) adults in Leeds. It also provides specialist services to a wider area.[6]Mental health services for children and young people in the area are generally provided by a different trust – through a service known as “CAMHS” or “CYPMH” (children and young people mental health). Nevertheless, the respondent operates two in patient units for children and young people, including one near Leeds. Those under 25 are treated as young people.[7]In the past the respondent was commissioned to operate the Northern School of Child and Adolescent Psychotherapy (“the school”) and as a means to give necessary clinical practice for those in training with that education provider, a clinical service (NCS).[8]NCS sourced contracts from local authorities and schools to provide specialist CYPMH services. The school – NSCAP - (and NCS) were anomalies for the respondent in what was otherwise, apart from the in patient units, adult provision.[9]The respondent decided to close NCS in 2023. There was no expectation that redundancy payments would be made to its staff because “we would always be able to redeploy clinicians”. That perhaps reflects an appreciation of the shortages of clinicians generally within the NHS.[10]The claimant’s entire NHS employment had been in CAMHS. His was employed by the respondent as Clinical Lead/Consultant Child and Adolescent Psychotherapist and he reported to the Clinical Director of the school. In simple terms he ran and was responsible for the clinical practice of NCS. As a result he was involved in strategy and leadership and he interacted with his peers accordingly. His grade was Band 8b.[11]The previous clinical director had approved a change of title for the claimant to ‘Consultant”, but the role had not been regraded – most consultant posts were at band 8c or 8d – Dr Ramsden, was a band 8c consultant, and Dr Harrison was a consultant, – both of whom were respected colleagues of the claimant. Dr Ramsden, like the claimant, reported to a clinical director, but she had three services for which she was responsible, and each had a clinical/psychological lead reporting to her.[12]The claimant and his NCS colleagues were put at risk of redundancy in July of 2023. All other clinical staff in NCS were drawn back to their clinical teaching roles, or otherwise accommodated within the respondent and there were no dismissals for redundancy within that staff group.[13]Between 2018 and 2023 the claimant had, at his own expense and time, trained in adult psychoanalysis, with the British Psychoanalytic Council (BPC). He was newly qualified and registered in April 2023 and could then take on private patients. He did so later in 2023 – psychoanalysis involves typically, treating a patient five days a week – typically five hourly sessions per patient over a period of time.[14]The claimant had taken on one such paying patient since qualifying and was developing a small private practice, including voluntary work – by December 2023 this involved a few adults and a few children (both voluntary and paid) - he had fully declared these matters to the respondent when required to fill out conflict of interest forms.[15]The claimant took part in a consultation process about the closure of NCS over many months through the second half of 2023. The respondent could not have done more to seek to redeploy the claimant through that consultation. After considering a number of posts and considering the professional and other requirements of those roles, the respondent made an offer to the claimant in November 2023.[16]The offer was a modified post – modified by addendum - one day a week would be spent at the Leeds CAMHS in patient unit in addition to the substantive post in the respondent’s “Pathways Service”.[17]The Pathways Service provided expertise to other providers to reduce the length of stay in hospital for adults with a Personality Disorder diagnosis . The purpose of the one day a week CAMHS unit addendum was to enable the claimant’s professional obligations and registration with the Association of Child Psychotherapists (ACP) to be satisfied.[18]A governance review led by Dr Harrison established that the claimant held the necessary paper qualifications for the Pathways post, because the NHS does not differentiate between psychoanalysis – the claimant’s adult qualification – and psychotherapy. The post was: Principal Clinical/Counselling Psychologist with the Leeds Personality Disorder Services reporting to the Clinical Lead/Lead Consultant Psychologist within the Service line – Dr Ramsden. The post was band 8b and the salary and other benefits/conditions were the same as in his NCS post.[19]The claimant did not meet the essential criteria for the role because he had no post qualification training relevant to this client group - post his adult qualification in April 2023. He was said to meet the experiential part of the essential criteria because the respondent considered his child and adolescent (0 to 25) experience met that criteria. The relevant entries in an assessment said this: “Experience of working with a wide variety of client groups across the lifespan and the full range of care settings including outpatient, inpatient, community, primary care, and residential, including maintaining a high degree of professionalism in the face of highly emotive and distressing problems, verbal abuse and the threat of physical abuse”. The assessor, Mr Lloyd (the director of the school) said this essential criteria was met commenting: “Karl’s work in the NHS is dominated by CAMHS experience predominantly in the community. The ACP accredited training in CAPT can govern clinical work from 0-25 years of age, including work with parents and families. Karl has experience in consultation to primary care and inpatient services. Karl demonstrates a high degree of professionalism in the face of highly emotive and distressing problems etc.”[20]The respondent’s analysis of the suitability of the post for the claimant said this under the heading “Skills required/Status”: Are the skills required for the post the same? What training can be provided? Yes similar skills/experience in CAMHS transferable to adult along with BPC registration. See role essential criteria review. Yes trial period with professional development plan to be agreed. Formal supervisor training can be provided.”[21]It is rare for children or young people to be given a personality disorder diagnosis, albeit some may exhibit the symptoms. Nevertheless, there is some similarity in treatment between an adult with the diagnosis and a child or young person exhibiting the symptoms – the common theme is a trauma based approach. Nevertheless, it was very clear that the lack of direct experience and post qualification experience would mean “a development plan” to bring the claimant to where he needed to be to meet the requirements of this post.[22]A clinical psychologist, Kerry Hinsby, a consultant psychologist, considered that it would take the claimant six to twelve months to be fully conversant with the role – which I find means – sufficient to offer the required leadership and supervision and expertise required by this very senior and specialist post in respect of this client group. The claimant considered it would take him five years to establish the deep expertise in this field - and the post was to lead and advise others – not primarily to practice or treat individuals.[23]The claimant was advised to accept a trial period in the role by his union representative, and although he did so, he became unwell himself with work related stress as a result of the long consultation period and the strain and conflict in his professional life which the post presented. He continued working with his then one private client, because that did not cause him that strain – he was working within his training and capability - and he attended a December meeting in connection with the offer of the post, albeit unwell. Ultimately he refused the offer following a lengthy process including an appeal, and his employment was brought to an end.[24]The claimant’s reasons to refuse the post, identified at length in correspondence were: 24.1. He was not qualified to undertake the role – and his professional registration required him to restrict his practice within the limits of his competence; 24.2. The post fundamentally changed the way in which he worked because he would have been working within two services and would have had two different professional accountabilities and reporting lines; and 24.3. It was a change - a reduction - in status.[25]Mr Skinner believed, not during an appeal meeting with the claimant, but on the basis of conversations and reviewing the lengthy process, that all the claimant wanted was a substantial redundancy payment - effectively he was not sincere in his objections to the post. I accept Mr Skinner and others formed that belief, but it was not my finding nor the impression the claimant made during this hearing. I considered he was a witness of truth and he gave considered and compelling evidence. That evidence included that had a suitable post been offered, he would still be at the Trust, and I accepted that. I should also note that all the respondent witnesses gave the impression of being witnesses of truth.[26]The claimant has not taken up another NHS post but he has undertaken sessional work since his dismissal. Discussion and conclusion[27]The claimant’s submissions were that the post was objectively not suitable for two reasons: qualification – both professional qualification and experience - and status - by reason of the change in the line of command – is how it was put.[28]As to the second question, the claimant had sound and justifiable reasons to refuse the offer and acted reasonably, taking into account his perspective, in relation to all three of his reasons.[29]The respondent’s submissions as to suitable alternative employment were: 29.1. The pay and grade of the post were the same; 29.2. The location was suitable; 29.3. The claimant had the qualifications to take up the post (with a supportive professional development plan); 29.4. Status - the old and new post were both band 8b and the title change was from “Consultant” to “Principal”.[30]As to the reasonableness of the claimant’s refusal of the post: 30.1. The claimant should have participated in a trial period in the role as a way of identifying whether it was suitable alternative employment or not; 30.2. There were no reasons to think the respondent would not support him in that trial period; 30.3. It was unreasonable not to request to extend the trial period - there was no reasonable trial because he was certified unfit; 30.4. Instead the claimant ran down the clock on the trial period and used that as a reason to assert it was not suitable employment; 30.5. This was in circumstances where the claimant was doing private work and attending meetings – the December meeting; 30.6. The distinct impression was that the claimant was never intending to participate in a trial period and was looking to a future where he would be undertaking private work with the benefit of a redundancy payment to assist with that.[31]In reaching my conclusion on the first question – was the offer objectively suitable – it has to be acknowledged that employers are often in a difficult position. In this case all that could have been done, was done, to preserve employment. The pay, grade, location and so on were suitable. If an employer fails to offer a role which requires training or development, albeit it is not one which the at risk person could do straight away, they are criticised for having not sufficiently sought to avoid the hardship of a dismissal. This employer cannot be criticised in that way.[32]The respondent was prepared to invest in a development plan to address the claimant’s experience deficit of this client group – adults with a Personality Disorder diagnosis – and his lack of post qualification training - an essential criteria. In simple terms, it was prepared to manage the risk of a postholder not holding one of the essential criteria, and having difficulties in another. That was part of its offer.[33]The objective difficulty with that approach is that it does not recognise the individual, regulatory and ethical responsibilities which accompany professional qualification: the claimant could not practice outside his competence, and on any measure, he did not, objectively, hold the required expertise and depth of knowledge in adults with Personality Disorder. He was not, objectively, qualified for the role, which was to be the leader of a specialist group in this field – to advise and lead on devising plans and strategies for those with this complex diagnosis.[34]This state of affairs is not unrelated to status. The chain of command point was along the lines of the claimant having previously reported to a general, he would now be reporting to a lesser rank, and therefore further away from the clinical directors in the offered post – that is how I understood it. That may seem trivial, but it masks the real point about status and how it is earned. The claimant was a leader and specialist having dedicated years of practice and professional development in CAMHS. He held the title of consultant because, no doubt, he had the credentials and gravitas to present his wealth of expertise and depth of knowledge in treatment of children and young people, both to peers and to others. In all good conscience he could not so present in the field of adult personality disorder.[35]The claimant was in the professional early stages of post qualification working with adults, and had no specialist qualifications or experience to bring senior level operation to the offered post. It is the qualification deficit which in my judgment leads me to conclude the offered post was not suitable, but the circumstances are also such that the offer presented the claimant with an inherent loss in status. He would be a “learner” in a new field, rather than a highly developed and established leader in his existing field reporting to a clinical director. Undertaking a very small amount of private work in his own time, at his own pace, in his own adult psychoanalytic specialty, does not, in any way counter the objective deficit in qualification in the offered post.[36]If I am wrong in that conclusion and/or for completeness, I come to the reasonableness of his refusal. The question is whether the claimant had sound and justifiable reasons for turning down the offer. In my judgment he plainly did. Even if offering a post where an essential criteria is not met, is suitable, the requirement for a development plan recognised that the claimant did not have the requisite expertise. That is not his fault – he was being asked to change specialties. I am not qualified to say how long it would take to meet such a plan, or acquire the depth of expertise and experience required, but the respondent and the claimant are so qualified. On one view it was six- twelve months and, on another, five years.[37]The claimant knows his own approach to learning and how long that takes him. His evidence was given in a sincere and reflective way – some people are more cautious than others when it comes to their professional lives. The need for development – the need to embark on a personal “project” over years to become that specialist – the other side of the not being qualified coin – was an entirely sound and justifiable reason to refuse the post, particularly when the parties’ views of how long such development could take were so very different. The respondent might have been happy to have him in the post, but his professional conscience did not permit it.[38]Against the claimant’s investment over many years in his own career, losing status was also part of his thinking, and it was far from fanciful for the reasons I have explained. It is not addressed by his grade and pay remaining as before, or being a smaller fish in a larger pool – if that is the right analogy for the fact that Dr Ramsden had three services reporting to her.[39]The ways of working point also reflected his professional caution and the seriousness with which he took his obligations. He would be having to work within two different accountability and governance regimes, simply to maintain his previous good standing in CAMHS, while undertaking the main project to achieve competence and depth in adults with personality disorders such that he could lead others. Again, these were sound and justifiable concerns.[40]As to the submissions on the part of the respondent, it will be apparent that the characterisation of the claimant’s refusal, is at odds with the findings I have made. This chain of events did place him under enormous strain and professional conflict. He was not “running down” the trial period, he was simply unable to resolve in his mind the professional conflict in what he was being asked to do, encouraged by his union, and he was exhausted by it with the consequent toll on his own mental health.[41]He did not act unreasonably in not wishing to embark on a new career path away from his expertise in CAMHS, with more professional risk and complexity at this time – he had sound and justifiable reasons for refusing the offer and his claim to a redundancy payment succeeds.