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You and downbanding - know your rights

You need to know your rights and your employer's obligations when faced with downgrading – or downbanding as it is commonly known in the NHS.

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Here are answers to some frequently asked questions.

As with all legal advice this is only a summary and individual circumstances and contracts of employment may affect how the law is applied.

So, please contact your CSP steward, regional senior negotiating officer, or the enquiry handling unit if you have any queries or before you take any action which may affect your employment. You can email: enquiries@csp.org.uk

Can I opt for redundancy if I am going to be downbanded?

Not necessarily. Employers are legally bound to prevent redundancies where possible.  

Consequently, if there are posts that are considered to offer reasonable suitable alternative employment then displaced staff can be redeployed into them.

If an employee unreasonably rejects an offer of suitable employment they can be considered to have rejected the job offer and can be dismissed legally with no payments or compensation.

Can I refuse an offer of suitable alternative employment?

Yes. But your refusal must be deemed ‘reasonable’.

Whether it is ‘reasonable’ is a subjective test which takes into account an individual’s personal employment circumstances. If you refuse, your job offer or any redundancy payments are put at real risk.

Always contact the CSP before you consider doing this. You should get in touch with your CSP representative or senior negotiating officer, or contact the Society’s enquiry handling unit.

My employer says they don’t need to consult as there will be no redundancies, only downbanding.

This is incorrect.

Even if the number of jobs remains the same, staff are effectively being dismissed from their current role and redeployed into different ones.

Consultation should still take place even if there will be no reduction in the ‘head count’, that is the number of people being employed.

Does my employer have to consult with me and/or the CSP when proposing a jobs change and downbandings?

Yes. Downbandings should be treated in the same way as redundancies. Employers have a legal obligation to consult both trade unions and individuals affected for:

 

  • a minimum of 30 days where they propose to dismiss 20 or more employees from their existing contracts
  • a minimum of 45 days where the proposal is to dismiss 100 or more staff
  • if fewer than 20 staff are involved, then employers must still consult on an individual basis with affected staff and their union reps

Although these are statutory legal minima we encourage employers to work with reps to establish how long is needed for effective consultation. In large or complex organisations this will often be longer than the period quoted above.

For CSP members, employers much consult with your CSP rep (whether that’s your steward or CSP senior negotiating officer).

If you work in the NHS this obligation is supplemented by the Agenda for Change agreement, which states: ‘Accredited representatives should be permitted paid time off to carry out duties that are concerned with any aspect of negotiation and/or consultation on matters relating to terms and conditions of employment.‘ 

Is there a legal minimum consultation period with respect to downbandings that employers must adhere to?

There’s no time limit on how long a consultation should last.  

But there is a legal minimum length of time between the start of the consultation process and when the first redundancy or change of role can be implemented.

An employer can issue redundancy or change of circumstance notices only after the consultation is complete, and the minimum length of time between making proposals and being able to issue the first notice of redundancy is set out in law. In practice, however, employers often use this to outline the duration of the consultation.

I have read that consultation must be ‘meaningful’. What does that mean?

Although employers must hold a meaningful consultation, there is no statutory definition of what this comprises.

Employment tribunals will consider the following to establish if a consultation has been meaningful:

  • was there a clear effort made to have an effective consultation?
  • has adequate information been provided in order for a reasonable response to be made?
  • has the organisation given a conscientious consideration to the responses made during the consultation process and to
  • any alternative proposals?


Are there circumstances in which employers don’t need to consult with individual members of staff?

No. In all redundancy situations employers must meet with all directly-affected employees individually, even if there is a collective consultation.

What happens if my employer fails to consult (collectively and individually) over potential redundancies/changes to the grades of jobs?

If an employer does not consult with employees in a redundancy situation then any redundancies or change in circumstances made are very likely to be unfair. If this happens, the employer can be taken to an employment tribunal.

If I am sick or on maternity leave and so not in the workplace, do I get excluded from the consultation?

No. Employers need to ensure that women on maternity leave are properly consulted. This also applies to employees on sabbaticals, on secondment, or on sick leave. fl

What is the CSP doing about fighting downbanding?

The CSP believes that downbanding is bad for our members, bad for the profession and bad for patients.

We are representing members on the ground and at a national level to highlight our concerns.

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