TSSA Questions & Answers 4: Milton Keynes Move This questions and answers briefing for members aims to advise members faced with some of the difficult issues concerning relocation to Milton Keynes. It is intended that the briefing will be added to as issues are raised that may affect different members across Network Rail. It should be read in conjunction with the NR s national people process principles document National Centre Change Programme Information for Employees. If you are unsure of your rights or what you should do, please check with your TSSA rep or the TSSA Members Helpdesk and arrange for a TSSA rep to accompany you into any critical meetings. Some TSSA Contacts are listed on the last page. 1. I have a British Rail contract, yet HR are attempting to treat me as if I m on Role Clarity through their People Process. Surely PTR&R applies to me? Yes the People Process is explicitly clear on this issue: This process is not intended to supersede any rights employees may have under the Promotion, Transfer, Resettlement and Redundancy arrangements (PTR&R). If you have never signed a role clarity contract, you need to ensure that HR are aware of your contractual terms and conditions at 1:1 meeting. If you are unable to resolve any issues informally, use your right to appeal as soon as possible and contact a TSSA rep or our members helpdesk for advice and representation. 2. I m displaced. I ve seen an external advertisement for a position I ve applied for on an open list. They can t do this, can they? Network Rail can advertise for posts in MK that they may be unable to fill internally. However, they have recently given a commitment that a new redeployment process will ensure that vacancies will not be filled by external applicants until all internal applications from displaced or at risk employees have been checked for suitability. NR recognise their legal obligation to prioritise displaced staff. Also, if you have an on-going appeal against non-selection for a suitable role, no appointment can be made to this role until you appeal has been heard. If you wish to appeal, do so as soon as possible.
3. I would happily travel to Milton Keynes if I could work on a flexible or part-time basis, as I have childcare commitments at home. I ve been told I have to apply for a full time post then enter a flexible working request with my new line manager when I start a new job. Is this right? No it s not. Network Rail have agreed at national level that flexible working arrangements should be discussed at the earliest opportunity. If you feel that your request is not given due consideration or is prejudicing your opportunities to avoid redundancy, speak to a TSSA rep or our members helpdesk for advice and representation. 4. I ve been refused a trial period for a position at Milton Keynes because of my travel to work time. Don t I have a right to a trial period regardless of where I live? Yes you do. We have written to the company to seek confirm that they will grant you your right to a trial period if your workplace changes. Whether you take on a new post as a result of displacement, or you transfer with your current role to Milton Keynes, you have the right to a three month trial period, reviewed every four weeks. 5. I m displaced. I ve applied for jobs but haven t heard anything. What should I do? Speak to your Line Manager to check the status of your application. You have the right to receive feedback from the recruiting manager if your application has been turned down. We recommend that you request feedback for any position for which you applied and were not invited to an interview. 6. What is NR s new position on travel to work time and how can it help me? Following several weeks of consultation, Network Rail has issued a new statement on travel time for those moving to MK. While it represents an improved position from NR, TSSA remains committed to supporting members rights to follow their work to MK. Members are encouraged to use the new guidelines where possible to support their case for a job at MK, and if not successful, to contact their TSSA representative to discuss an appeal. If members are not satisfied with the outcome, it will be critical to seek advice and to safeguard your legal rights by appealing in writing.
The following text reproduces NR s new policy. We will allow travel time up to 90 or 75 minutes. these times will also apply to those travelling by car. Where an individual is appointed to a position and can meet the prevailing travel to work criteria travel assistance will be provided. The principle of a threshold will remain in place (90/75 minutes) but this does not override the business s obligation to consult with individual employees and consider their personal circumstances before making a final determination on a suitable alternative this would include exploring alternative arrangements to travel such as partial relocation, transition arrangements which could influence their ability to relocate. An illustration of some of the factors to be considered can include: The nature and length of the current journey The nature and length of the new journey The impact of those with contractually agreed flexible working arrangements and those working part time The number of modes of transport, the number of connections and complexity of journey In the specific circumstances where an employee is required to regularly perform their duties on average 2 days or more per week away from Milton Keynes and that this is confirmed by the Functional Director the company will consider allowing travel times of up to 105 minutes. The Company will seek to act reasonably and will put in place central review mechanisms to support and advise line managers and ensure fairness of application and consistency. TSSA Guidance NR s previous strict time thresholds about working at MK failed to reflect the company s legal obligation to take into consideration their employees views on the suitability of alternative work and their personal circumstances. The business s obligation to consult with individual employees and consider their personal circumstances overrides NR s desired time thresholds and this is reflected in NR s new guidelines. The personal circumstances of the employee now take precedence.
Although there is a specific reference to a 105 min threshold, the new guidelines should not be interpreted that 105 mins represents an upper limit for staff. This specific clause can be applied where helpful to individuals working away from MK, but has no further relevance to other staff. NR s new guidelines provide a non-exhaustive list of factors that should be taken into consideration as part of the 1-2-1 discussion. The nature and length of the current journey The nature and length of the new journey The impact of those with contractually agreed flexible working arrangements and those working part time The number of modes of transport, the number of connections and complexity of journey In practical terms, members could raise the following issues: The impact of the journey on the individual, their capacity to commute and personal view of the journey The length of the journey compared to their current commute is it as long, not significantly longer or even shorter? Using public transport The number of changes en route The nature of the journey - long periods sitting / being relatively restful If driving, consider if the driving is shared, route is easy, not congested, or part driving and public transport A lesser number of commutes than daily - by staying over, partial relocation, An existing working pattern that includes working at home or nearer home, or working shorter hours New flexible working application that includes working at home or nearer home, or working shorter hours Mobility of the job if you travel to other areas, either to illustrate that the travel requirements of your work are at least as onerous or that the number of occasions you would commute to MK is reduced. Where members have been told, formally or otherwise, they are not permitted to travel to MK, this position must now be reviewed by NR in the light of the new guidelines. 1-2-1 discussions will need to be re-opened to facilitate discussion about personal circumstances which, for most staff, was not possible when line managers were compelled to apply the arbitrary travel thresholds.
Line managers will now have much more scope to support their staff in the move to MK and it is our expectation that the majority will grasp this opportunity to be able to encourage skilled and experienced staff to continue to work for NR. If this is not considered fully in a further 1-2-1 meeting (and it is taking some time for the implications of the new guidelines to filter through the organisation), we would strongly urge members to use their right to appeal following any formal notification that they are at risk of redundancy (or if you are dissatisfied with any other outcome). The law around suitable alternative employment and the duty on the employer to mitigate redundancies will provide the core legal arguments for most individual cases please see the next sections of the Q&A which explain this area of the law. If you wish to appeal, please approach your rep or call the TSSA Members Helpdesk if you are uncertain who your rep is as soon as possible to discuss submitting a letter of appeal. 7. What are my rights to appeal? The rights to appeal are written into the National Centre Change Programme Information for Employees document and there is an Appeal Notification Form in Appendix F which you may wish to use. The section below replicates NR s policy: 20.1 Employees can appeal against decisions at any stage of the identification, appointment and selection for redundancy processes using the appeal notification form (Appendix F). 20.2 Employees should submit appeals using the notification form to your HR contact within five working days of the issuing of the employee letter. 20.3 An appeal hearing will then be arranged to consider the evidence where an employee will be entitled to be represented by a colleague or union representative if they wish and dealt with in accordance with the protocols of the grievance procedure. Employees should normally receive a written response within seven working days of the hearing 20.4 The decision of the appeal hearing will be final. An employee has the right to raise a formal grievance if, following the appeals process, they still feel their case has not be addressed. In these circumstances, the appeal hearing referred to section 20.1 will be regarded as the first formal stage of the individual grievance procedure. 8. What should I do if I receive a letter saying that I cannot work at MK due to travelling distance?
If you are still refused the right to follow work to MK because of travel distance, despite the new guidelines, TSSA advises all members to appeal immediately once they receive confirmation from NR. (Please see question 1 for information on new guidelines and question 4 on what is suitable alternative employment) On the issue of not being allowed to work at MK due to travel distance, your appeal letter should cover the next two paragraphs below in order to safeguard your legal position: My appeal is on the grounds that I have been refused the opportunity to take up the post of XXX in Milton Keynes because I live more than XXX travelling time away. I am prepared to travel to Milton Keynes and therefore I consider your refusal to allow me to take up the post to be a denial of suitable alternative employment which means that you would be unfairly selecting me for redundancy, if you proceed to dismiss me as part of the relocation process. 9. Can I change my Expression of Interest form? If staff wish to change their Expression of Interest (EOI) form in order to ask for relocation, or to state a preference for commuting following the change to NR guidelines, our advice is to put your position clearly in writing, either in an appeal letter or as a covering letter to a new EOI. Safeguard your position by always expressing clearly your first preference 10. Can I refuse to relocate to MK because of the distance? Yes. Under the normal legal principles that determine suitable alternative employment you can decline any post if you have good reason. However, if your contract of employment has a mobility requirement you should seek further advice from TSSA. Relocated jobs at MK will count as alternative employment to redundancy because the employer is no longer intending to carry on its business at specific locations (London offices, Derby, York etc). The key legal questions are whether that work is suitable to the employee, and whether the employee should reasonably accept it. If the answer is no to both or to the second question then the employee can reject a job, seek other work within the company or ultimately be paid redundancy pay. For a job to be suitable alternative employment, the work must be the same as, or not substantially different from, the previous work and must be suitable for the employee. Changes in pay, working hours or working time, status or grade and location will be taken into account in determining suitability. Even if the work is objectively suitable, an employee can still reject it and be entitled to redundancy pay if there are reasonable grounds for rejection relating to their personal circumstances.
The question of whether the work is suitable is considered separately from whether an employee is reasonable in refusing it. Whether or not work is suitable depends on objective factors such as a comparison of the terms and conditions (including location) and skills. The reasonableness of the refusal by an employee to take up the offer will depend on subjective factors personal to the employee such as domestic arrangements, health and housing. For example if a new location would mean extra travel time, disturbance to childcare arrangements or looking after a dependent relative, then the employee can reasonably refuse to take up the position. As the location changes, all staff are legally entitled to a trial period of one month. NR extends this period to three months. During this period staff can reject the job on reasonable grounds and retain the right to a redundancy payment. Continuing to work in the new role after the completion of the trial period amounts to acceptance of the role and so any reservations must be advised to the company before the three months expires. If the job at MK is rejected as unreasonable, the employee should then still be able to pursue other opportunities available in the company. Once that process is exhausted redundancy will take place. 11. Does the company have to offer me suitable alternative employment? Yes. The company has to offer staff suitable alternative employment wherever possible because both the employer and employee have a duty to mitigate the redundancy. NR s intention is that roles that would be deemed as most suitable, such as those differing only in location, would be found in the identification process. If the actual role is ending, or the amount of people employed in that role is reducing as part of a reorganisation, the company should also offer other work, even at a different grade or in a department. The employee is under no obligation to accept a role that is substantially different but the employer has a duty to offer it. 12. What if I want to continue to work for NR but must work nearer home due to my family needs and I cannot relocate? If you have children under the age of 16, or disabled children under the age of 18, or are a carer for another relative, we would advise you to say that you wish to work at MK and put in an application for flexible working if appropriate. While there is no absolute right to flexible working legally there is the right to request flexible working if you have children under the age of 16 or disabled children under the age of 18 and have that considered seriously by the company this avenue should be explored.
NR policy is broader than the statutory right to request flexible working as it applies to parents and spouses, partners and civil partners of parents of children and to a broad category of carers. NR s policy is contained within Family Friendly Policy Information for employees April 2007. Carers are those who have or expect to have caring responsibilities for an adult in need of care who is a spouse, partner, civil partner or relative or, if none of these, live at the same address with the adult in need of care. Relative according to this NR policy includes a long list of family members including parents, in-laws, grandparents, brother, sister, step or half blood relative. Examples of the sort of care-giving activities that carers of adults are likely to be involved in include help with personal care (e.g. dressing, bathing, toileting), help with mobility (e.g. walking, getting in and out of bed), giving/supervising medicines, escorting to appointments, emotional support, practical household tasks (e.g. preparing meals, doing shopping, domestic labour). See the policy for the full list. Under the NR policy, you can request to change the number of hours you work, change the times when you are required to work; or work from home (whether for all or part of the week). Under the legal right to flexible working, you can request a wider range of working patterns such as compressed hours or working nearer to home in part of the week. If you request to work fewer hours, be prepared to have your pay reduced accordingly. There is a process for making an application for flexible working using a NR form. See the NR policy for the timeline of making an application, appeal rights etc and seek advice before you make an application. You will need to address issues such as covering the work within the team, or maintaining close contact with the office as part of this application, attending meetings, briefings and supervision. The company will need to respond in detail to your specific request dealing with the issues around the business. Generally, as a company, NR has yet to deliver in practice the support their policy could theoretically provide. Recent pronouncements on core hours at MK are indicative of the overall stance, but some areas of the business, and certainly some individual line managers, have creditably supported their staff. 13. What is NR s redundancy pay? There is a Redundancy pay calculator (a chart sometimes called a Ready Reckoner) appended to the National Centre Change Programme Information for Employees document (appendix E). This calculates redundancy pay entitlement at your age at your last birthday for each completed year of service. It is an enhanced redundancy scheme, which is significantly better than the statutory scheme. If you are coming up to age 60 or are over 60, please contact your rep. 14. What are the notice periods, do I have a right to leave early?
The standard notice periods are: - Band/Length of employment Period of notice from Network Rail Period of Notice from employee Bands 1-2 6 months 3 months Bands 3 to 5 Up to 5 years 5 years or more 4 months 6 months 2 months 3 months Bands 6 to 8 Up to 5 years 5 years or more 6 weeks 3 months 1 month 6 weeks The company can agree to waive the requirement to work the full notice period. However you may jeopardise your redundancy payment if you leave early without NR agreeing that you can leave early with a redundancy payment. If you are on notice but find alternative work outside of the company you will need to obtain their agreement to allow you to leave with your payment in place. If they do not agree to release you with the payment, your only option would be to resign, by giving them your normal contractual notice and to leave with no redundancy payment. Only you can decide in such circumstances whether the new job is worth losing the redundancy payment, or whether it is better for you to complete your notice period in order to obtain the redundancy payment. The risk, of course, in such circumstances is that you may not be able to secure another job when your contractual notice period has expired. 15. Can I now receive financial assistance with travel costs? Financial assistance with the additional costs of travel are now available for staff travelling up to 75 mins (Bands 5-8s) and 90 mins (Bands 1-4). Previously NR applied discretionary criteria for those travelling between 60 and 75 mins and 75 and 90 mins and in a further positive move, have discarded the criteria. 16. Are there new criteria for applying for relocation?
Yes, new criteria have been issued by NR. TSSA has been consulted on the revised criteria but it is not agreed by the union. Please see the latest version of the People Process document to which the criteria is now appended. 17. I have been offered a job at MK but only on a temporary basis. What can I do? Network Rail has made temporary job offers to some staff who are outside their time travel thresholds, which are being referred to as transitional arrangements. A number of staff who are outside the (alleged principle) time thresholds have been offered temporary work at MK, effectively extending their contract until June 2013, on the basis that they commute to MK 4 days each week and have 1 day closer to their home at an unspecified location. They remain at risk of redundancy and have been informed that this is for the purpose of knowledge transfer (i.e. knowledge of their job passed to a new recruit). At the end of the period they have been told that they will be made redundant. Your union has written to Network Rail stating our opposition to this offer and our advice to members is to appeal against the decision to not be offered the job on a permanent on-going basis. In your appeal, the following points can be made: I am appealing against your decision to offer me this position (XXX) at Milton Keynes only on a temporary basis with a declaration that I will be made redundant in (date). It is not acceptable to stipulate that I will be made redundant on (date) as my role will be on-going and I will be able to continue to fulfil that role I have been matched to a job which I consider to be suitable alternative employment. However, in proposing that I have excessive travel time and for that reason stipulating an end date of the role at MK, you have created an unfair, artificial and arbitrary obstacle that prevents me from securing that post on a permanent basis. You are prepared to let me commute while this serves a purpose for the company i.e. the transfer of my knowledge to another person. This exacerbates the unfairness of the proposal in a most transparent way Network Rail s mitigation of what the company sees as an excessive travel time is to allow me to work at another location for 1 day per week. You have failed to disclose this location and more importantly you have not discussed with me whether this arrangement, or something similar, could continue beyond 2013 if the company does have genuine concerns about my travel time. Your position on my travel time ignores your recently issued guidelines about the consideration of personal circumstances. For the record I am fully prepared to travel to MK, four or five days per week and do not see this as problematic.
13 I have received a job offer that is subject to living and remaining in the travel limits described... Is this reasonable? No! TSSA has raised this with NR. In a letter dated 10 January, NR replied to say: the wording.. in some letters that restricts future travel limits to 75/90 minutes will not apply. Those who have received such letters will shortly receive a revised letter without this stipulation. If you do not receive a revised letter by the end of January, please contact your rep. 14 Will I get my bonus if I leave under redundancy? On the question of whether bonus is payable to those under notice of redundancy due to the move to Milton Keynes, the minutes of the national meeting of Network Rail and the unions on 5 Sept confirm this (see extract below). Extract of minutes 5/9/11 What happens to bonus for people on notice of redundancy? Can we get confirmation of that? If they have worked the full bonus year they will still get the payment. This is GBS or MIP. It will be in the notes of the meeting. The bonus year referred to is at the end of March, so if staff have worked the full year to the end of March, the bonus will be paid. In the run up to this time, staff should keep an eye on their appraisals to ensure that the value of their bonus is not affected. 15. Can NR fill vacant roles externally when staff are facing redundancy? Following concerns raised by TSSA regarding the job procedures for displaced staff, and increasing concern about the pace of external recruitment, Network Rail has affirmed a commitment to prioritise displaced staff. Finding roles for displaced staff should be the priority in filling vacant positions, ahead of other internal applicants as well as external applicants. In a letter to TSSA, dated 10 January 2012, Network Rail states:
When considering applicants for alternative jobs: displaced applicants will require to be considered first ahead of other internal candidates; and external candidates will be considered only when the pool of internal candidates has been considered. Where a displaced applicant is turned down for an alternative role the hiring manager will be required to justify this decision. The criteria which will be used in the selection process will be relevant job-related criteria as applicable to the role i.e. relevant skills, experience and competence requirements. In the people process document Information for Employees NR states: retraining for a suitable alternative post will be considered where appropriate. Staff can argue for additional training where useful. We have also received further written assurances relating to on-going appeals: where an individual has raised an appeal against the non-appointment to a specific role that the position itself should not be filled until the appeal has been heard whether this is through an internal appointment or external we do need to prepare for the prospect of appointment and as such continue with the internal and if appropriate external recruitment process whilst the appeal is being heard no appointment to such a role will be made until any outstanding appeal is concluded. Clearly, it is essential that if you have the right to appeal, you must exercise this right as soon as possible. Network Rail s legal obligations in a redundancy process are to ensure that they work to mitigate (reduce) redundancies and offer alternative employment wherever it is available. If Network Rail s actual practice matches this policy commitment, the company will be less likely to face grievances / appeals and eventually complaints of unfair dismissal at the Employment Tribunal on this issue. If you are concerned about how you are being treated in applying for vacancies in the Closed or Open Lists, please get in touch with your rep. Please also let us know about the level / stage of external recruitment in your area.
YOUR HELP IS ALSO NEEDED TSSA is intending to update this Q&A with further questions and advice as the process continues. Practice has already varied between functions and locations, so keep us up to date with what individual members of staff are being told by sending us a copy of any decisions you receive as we need to build on good practice and advice and help members who are treated poorly. Even if you are happy with NR s decision or do not need advice at this time, please do send copies of letters to richardsm@tssa.org.uk or by post to M Richards, TSSA Walkden House 10 Melton St London NW1 2EJ. You may blank out any personal details if you wish. Please distribute this Q&A to your colleagues, whether members or not and do encourage your colleagues to join the TSSA. Together we will be stronger! You can join TSSA online at www.tssa.org.uk/join CONTACTS Your TSSA local and Area Council Reps HEAD OFFICE: Madeleine Richards richardsm@tssa.org.uk TSSA MEMBERS HELPDESK: 0800 328 2673