What legal options exist over seemingly unfair role matching in restructuring

[PieBear]

Apologies for the length of this, I wanted to include relevant information rather than drip-feed. I work in a large public sector organisation and have serious concerns about a service redesign we're currently going through. It is merging 2 separate services into one. Preference has very clearly been given to those in one service (A) with new roles which clearly state will cover both service areas in the new structure being level 1 matched to individuals in this service meaning they are being given these roles without any competitive process. It is obvious that others in the other service (B) have equal experience (doing similar roles but at a higher level) so as a minimum they should have been level 2 matched (arguably Level 1 matched due to the higher level of responsibility reflected in a higher grade) to trigger a competitive process. A key issue, I think, is that the head of service B is relatively new, inexperienced working at this level and has no understanding of what the roles in this part of her service actually do and has not engaged in any discussions with the relevant staff to find out. I've raised this with my TU rep who completely agrees and is asking questions and seeking clarity on the matching process, supported by clear evidence provided by me. My concern, and hence my asking here, is that on discussing my case with the TU rep following the "nothing to see here" responses we've so far received from management, when pressed for what leverage we actually had to press for transparency and accountability my rep's response was that they would not provide the clarity needed and the end result would be pissed off staff. This appeared to be the extent of her thinking. Whilst she might be up for a fight on this basis I'm not - I want to understand the actual legal processes available to me to press for some level of transparency, accountability and fairness so I can prepare a strategic plan for next steps. If the reality is that there are none and management will push through what they want regardless of the glaring inequities I want to know this so I dont waste emotional time and energy on a lost cause. However, probably naively, I can't quite believe that management in a large public sector organisation can do something on this scale with no sort of accountability whatsoever. Does anyone have any knowledge or experience in this area who could help me understand any realistic options available to me? Thank you and sorry this was so long!

start with ACAS or your union.

Thanks, yes, my TU is already supporting me. Just not sure they've currently got a plan apart from being very cross and asking for answers (which they've acknowledged privately to me they won't get). It's why I'm throwing the net wider to see if anyone is aware of any realistic options I can suggest to my rep they should pursue.

@PieBear I went through restructuring at work but a long time ago. In our case (local authority) the job structure was published and as I recall a few jobs were ring fenced because no one else could do them. It was education and the ed psychs fell into this category.

Those of us who were not in specialist roles could apply for jobs. My job had disappeared so I did need another one. We were able to apply for up to three jobs initially and we were not matched to anything. As a result we applied for jobs we thought we could do and were qualified to do. In my case, I didn’t have direct experience of my new job because it was new! I did however have transferable skills from my existing job. I ended up with a promoted job but most people stayed roughly the same and a few were disappointed and took redundancy. However I never saw this matching process by others and inevitably suitability for a job had to be assessed at some point but after the employee had chosen which jobs to apply for. It didn’t feel unfair.

I think I would have resented being told I was not matched to a job I could obviously do and many of us needed training to be a success because when your service goes you have skills but not necessarily an exact fit. Hope you get better news.

Thank you so much for taking the time to reply so fully. Yes, I’ve been through previous restructures which have followed the process as you've descibed it. This is claiming to follow that process but in reality isn't. They're bringing together 2 operational services each with their own "back-office" teans, doing very similar things. The new service is reducing these back office roles to create one function which I understand and have no issue with at all; its the mechanism of how they've matched people to these new roles from both existing teams - effectively giving people in one team roles without any competitive process, leaving those in the other service having to fight for the small number of less suitable roles, without evidencing how they've reached this determination - which I want to challenge. As a minimum I think management should have to clarify how they've reached their decisions but at this point their responses are "we've followed the process and this is where we are" without providing any evidence to demonstrate how. I really want to understand if there's any recourse to realistically challenge this successfully, given the response from my TU rep is that she's happy for the fight as she agrees it's very poor but it won't achieve anything as management won't budge.

Have you spoken to ACAS?

No, would they offer anything different to my TU? I don't want them to feel undermined as they are on my side and I'm trying to be realistic in what can be achieved but if ACAS might offer a different perspective I'll definitely follow up with 5hem on Monday. Thank you for taking the time to wade through my posts and respond.

I doubt your union would feel undermined if you consulted ACAS. However, the general rule is that an employer is entitled to restructure however it wants and there is no requirement to follow a fair process when choosing who to put in which role (although there must be a fair process to decide who is being made redundant if headcount is being reduced). An employer is not required to identify the best candidate for each role.

If the process has discriminated against you due to a protected characteristic that would give you a case. You would also have a case if the outcome results in you receiving reduced pay or some other negative change to your terms of employment. However, if your only complaint is that you haven't been given a chance to apply for one of these roles, it is highly unlikely that you have a case.

ACAS says there should be fair process to fill the new roles though. They have avoided this by not allowing the op to be considered. It’s not good practice in my view because what firm doesn’t want the best people in the company? This situation is hardly harmonious.

Thank you, that's very helpful information. Redundancy would bother me less as I'm old enough for that to trigger access to my full pension without reductions. But they have a no redundancy policy for specifically this reason so shoehorn people into other roles as quickly as possible with 3 years' protected salary. Thats my biggest concern - being shoved into a lower paid tole that makes no use of my skills and experience and then having my salary drop just before retirement, impacting on the final salary element of my pension. I have had challenges relating to lack of management support with managing difficult staff which i did advise them was affecting my health due to a disability (Occ Health involved) but given their complete refusal to discuss how they've arrived at their matching decisions i think it would be hard to prove motive, even if it feels like a reasonable conclusion to draw. Thanks, again for taking the tine to respond so helpfully..

Yes, thank you. exactly what my union thinks, too! Just have no idea of appropriate steps we can actually take to change anything, if they just continue to stonewall our requests for clarity/transparency on their decision-making process.

@PieBear I’d look at constructive dismissal if the job is less pay and below your skill level. Check out ACAS.

There are more people than roles (headcount is being reduced) and the role that I (and 4 others) have been matched to is at a lower grade than my current role. The other role which I believe I should've been matched to (and was given to the person in the other service via matching) is also at a lower grade so even if I do secure a role it will be at a lower grade. It does feel very much like they're doing their best to get rid of me as I've become a problem (long-standing management failings which they didn't address which ended up affecting my health) so its just easier for them to get rid of me than actually addressing the issues which they should have. Does this sound like a case realistically worth pursuing? I dont want to make myself ill again stressing if nothing i do is likely to effect any change. Thank you!

So there will be redundancies? I think your union should be involved. I can see what @prh47bridge says but I would expect firms to be transparent about the jobs and inviting applications from suitably qualified people. What have they said about redundancy and if this is leading to redundancies, you should indeed be offered a job and not have to apply. If it’s a job that’s not acceptable to you, and it’s less pay, you can turn it down. You don’t want to scupper redundancy pay though if that’s a better route for you. It seems this system is being used against you and your section can raise a grievance. Law - yes, consult a solicitor.

We have a "no redundancy" policy which means that people who lose their roles get recirculated around the organisation on paid protection for 3 years. This happened me after my last restructure and it was horrific - being lined up for interviews for roles that bore no resemblance to the role Id left. "Transferable skills" is the mantra. I got lucky the last time after months of hell that made me ill. I can't face the thought of that again. I'd would much, much prefer to just be made redundant if they're that desperate to get rid of me rather than put ne through this humiliation because they dont want to have to pay the costs of me accessing my full pension early.

Redundancy is a redundant job. The person in the redundant job can be redeployed or made redundant. You did imply there were more workers than jobs and that means their jobs are redundant. I think I’d see a solicitor because there seems to be quite a complex situation here. I have always worked somewhere which treated people fairly.

Gosh, I didn't think those sort of work places still existed. I've clearly spent too long in this one! Thanks for taking the rine to read and comment.

From what you have written I suggest you have a look at whether unconscious age discrimination is a factor.

Your TU rep can ask for anonymised data e.g. people in service A by age group, people in service B by age group. I would also be asking for the Equality Impact Assessment. Finally ask for the Job Evaluation paperwork for the existing roles in Services A and B as well as the JE paperwork for the new roles.

All of the info is either job specific or anonymised. Let the TU rep ask for it as it will look more formal. Have a look to see if you can spot any glaring impacts on the older age group I.e. is everyone in service A under 40 and service B over 50.

Are you impacted by McCloud?
My advice is if you have 4 years to normal retirement age for your pension scheme and 3 years pay protection plan ahead to resign at the very end of the pay protection. This will give you the higher final pensionable salary to calculate your pension entitlement as it will be preserved until you draw your pension. Note: You may find your pensionable pay is the highest in the last 36 months and that makes a difference. Make sure you understand the pension rules.

The other option is to start applying for promotion roles possibly in another part of the business or department. Ultimately with a final salary pension getting just 12 months at the higher salary makes a difference.

I know I have covered a lot in this post but with 4 years to go pension planning should be a high priority.

@Kirschcherries Final salary pensions are just about dead now! The op would never get one! Negotiating an exit might work but I’d see a solicitor first. If she needs to work, finding another job could be very difficult. Often in these scenarios recruitment should be frozen until the displaced staff are sorted out but obviously it depends on the business and the skills needed.

The op is in the public sector and states “Thats my biggest concern - being shoved into a lower paid tole that makes no use of my skills and experience and then having my salary drop just before retirement, impacting on the final salary element of my pension”

Anyone in the public sector with long service is potentially affected by the McCloud judgment where final pensionable salary matters. The schemes are now closed from April 2022 but accrued service in the final salary pension is still final salary and uses final pensionable pay.

I am not sure anyone with 30 years service would get near a final salary pension. It’s average over a number of years so salary makes an impact. But that’s not final salary pension. Maybe civil service does but local government doesn’t.

History lesson the Principle Civil Service Pension Scheme (PCSPS) was a final salary scheme based on 1 year = 1/80th of your final pensionable pay. At 60 you got 1/80th for each 365 days of service plus 3/80ths as a lump
sum. Having a high salary in your last 3 years before retirement boosted your pension & lump sum. Note: The pension is index linked so goes up each April based on the previous Septembers CPI.

The McCloud judgement means anyone who joined the PCSPS before 1 April 2015 were retrospectively allowed to remain in the PSCPS and accrue service up to 31/03/2022.

Anyone new joining the Civil Service from1 April 2015 went into Alpha - a career average pension scheme.

McCloud affects NHS, Fire Fighters, Police and many other older public sector pension schemes which were final salary. Some used 60th rather than 80th.

The LGPS is covered by McCloud https://www.lgpsmember.org/mccloud-remedy/

This was incredibly helpful,- thank you! That link has triggered me to email my LGPS for an estimate based on the McCloud remedy. I had a secondment ended during the remedy period and I'd no idea the higher salary could legitimately form the basis of my final salary element!

@PieBear glad to help.

If you don’t mind I am going to suggest you really look at your retirement planning.

• Start with a state pension forecast https://www.gov.uk/check-state-pension
• Collate information about all of your pensions - you should have annual benefit statements. The key date is the normal pension age as this is when you can draw your pension in full.
• Workout your current annual expenditure - include everything e.g. presents, insurance etc.
• Estimate what your likely expenditure will be when you retire.

Use this to work out when you can potentially retire but also how you could reduce your hours to phase into retirement.

Thank you, yes, I have been doing this for a number of years; detailed spreadsheet of income, spending and savings plus amnual pension projections to understand what I'll need to meet the standard of living I'm hoping to have in retirement What I didn't realise until I read your link and then looked into the McCloud remedy further was that the higher salary I earned from the 2 year secondment would be eligible as the final salary portion of my pension as this isn't automatically included in the projections. It makes the impact of the current restructure slightly less frightening but won't stop me challenging the shit-show of how it's being implemented. My TU rep has identified a number of additional areas they're clearly failing to properly consider so if they press ahead and implement as-is it's looking likely we will be taking things further, likely starting with a grievance and taking it from there. Their staggering ncompetence and blythe sense of invincibility is a great motivator to keep on with the challenge. Thank you, again. It's very kind of you to take the time to share your expertise with me. I'm very, very grateful to everyone who has offered their advice on this thread.