Appeal No.	EAT/1376/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 March 2000

Before
HIS HONOUR JUDGE P COLLINS CBE
MR J R CROSBY
MR R SANDERSON OBE

MR S SHAWKAT	APPELLANT

NOTTINGHAM CITY HOSPITAL NHS TRUST	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING 

Revised 22 May 2000.

	APPEARANCES

For the Appellant	Mr John Quigley, Solicitor
British Medical Association
BMA House
Tavistock Square
London
WC1H 9JP	

JUDGE COLLINS CBE:

1.	This is an appeal against the decision of an employment tribunal sitting at Nottingham, their reserved extended reasons having been promulgated on 24 August 1999.  The tribunal held that the Appellant was not dismissed by reason of redundancy and in particular they found as facts that firstly, that there was no reduction in the amount of thoracic surgery that needed to be performed at the Respondent hospital and secondly that there was no reduction in the number of employees required to perform that work.  

2.	This is a preliminary hearing and it is our function to ascertain whether or not there is a reasonably arguable point of law.  The history has been somewhat complicated.  It began by an originating application dated 25 March 1997, in which the Appellant claimed that he was dismissed by reason of redundancy, he claimed on the ground of unfair dismissal and he also made a claim in breach of contract.  He had been a Staff Grade thoracic surgeon employed by the Respondents from 11 October 1993 until 31 December 1996.  Between those dates there was a reorganisation placing much greater emphasis on cardiac work and it was proposed that there would be changes in Mr Shawkat’s responsibilities and the way that they were to be discharged.  He objected to the proposals and on 19 August 1996 there was a grievance hearing.  The outcome was unsuccessful from his point of view and on 7 October 1996 he was dismissed with effect from 31 December of that year on the ground that he would not consent to the proposals for his part in the reorganisation.  He appealed against the dismissal; that appeal was heard on 4 February 1997 and was dismissed.

3.	The Notice of Appearance dated 21 April 1997 stated that the change to emphasis on the cardiac unit necessitated a reorganisation.  The Appellant’s complaints occupied the time of the tribunal for a total of 8 days and they reserved their decision, giving it on 6 March 1998.  They held that the Appellant was unfairly dismissed on the grounds that he was being required to perform work outside the terms of his contract and was entitled as a matter of contract to refuse.  But they dismissed his claim that he was redundant.  He appealed to this tribunal and on 25 February 1999.  Charles J gave a judgment in which he concluded that the tribunal had given insufficient or unclear reasons in relation to their definition of work of a particular kind for the purposes of the consideration of redundancy and the case was remitted to the tribunal for further findings.  It was those findings which I mentioned at the outset of this judgment and which are now the subject of appeal.

4.	The tribunal were aware of the decision of the House of Lords in Murray v Foyle Meats Ltd [1999] ICR 827 although they did not have an official transcript.  They cited the central passage from the speech of Lord Irvine of Lairg LC in paragraph 7 of their reasons and I shall not repeat it in the course of this judgment.  At paragraph 13 of their reasons they ask themselves the questions, which the Lord Chancellor advised should be asked.  The Notice of Appeal dated 14 October 1999 takes the point that the tribunal should have identified work of a particular kind not as thoracic surgery tout court but as Staff Grade thoracic surgery and that in that connection they should have taken into account the fact that a doctor who replaced the Appellant did other work as well as thoracic surgery. 

5.	In our judgment, the point is a false one.  It seems to us that the tribunal was perfectly entitled to conclude that the relevant work to which they should direct their attention was thoracic surgery.  The fact that thoracic surgery could be done by doctors working 24 hours a day or by doctors working from 9am -5pm is a matter of organisation but does not relate to work of a particular kind.  Since the tribunal were entitled to approach the question in that way, it seems to us that the decision to which they came was a simple matter of fact.  They determined that there was no reduction in the amount of thoracic surgery and no reduction in the number of employees required to perform the work of thoracic surgery. It is impossible for us to go behind those findings of fact and accordingly dismiss this appeal, which discloses no reasonably arguable point of law.