Appeal No. UKEAT/0116/11/ZT 

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

	At the Tribunal
	On 1 December 2011

Before
THE HONOURABLE MR JUSTICE WILKIE
MR A HARRIS
MR S YEBOAH

MRS S B READMAN	APPELLANT

DEVON PRIMARY CARE TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR BEN COOPER
(of Counsel)
Free Representation Unit

	
For the Respondent	MS ELIZABETH CUNNINGHAM
(of Counsel)
Instructed by:
Messrs Bevan Brittan LLP
Kings Orchard
1 Queen Street
Bristol
BS2 0HQ

SUMMARY
REDUNDANCY – Suitable alternative employment

Did the Employment Tribunal err in law in concluding that the Appellant had unreasonably refused an offer of alternative employment for her own reasons, when it had correctly concluded that the offer was an offer of suitable employment which a reasonable employee could have accepted?

THE HONOURABLE MR JUSTICE WILKIE
Introduction
1.	This is an appeal by Mrs Readman against a decision of an Employment Tribunal sitting at Taunton, which rejected her claim for a statutory redundancy payment against her erstwhile employers, Devon Primary Care Trust.  The hearing of the application was on 15 and 16 September 2009.  The decision was reserved and the Reasons sent to the parties on 2 November 2009.

2.	The Appellant was born in 1958 and began her nursing career in the NHS in November 1976.  She ceased working in a hospital setting in 1985 when she began working in Community Nursing and thereafter, until the events in question, she was engaged in various capacities in Community Nursing, ultimately working as a Community Modern Matron, which gave her the responsibility of running community and district nursing in the coastal locality of Teignmouth and Dawlish.

3.	In October 2006, her employment transferred to the Respondent but her role effectively remained the same.  In November 2007, she was told that she was at risk as to potential redundancy.  The Respondent had decided to reorganise its professional leadership structure by separating professional leadership roles from operational management responsibilities.  They created a band 8B Head of Practice for Community Nursing, and two band 8A Professional Lead roles, for which six employees were invited to apply.  The Claimant was one of them.  She applied for one of the band 8A Professional Lead roles, but was unsuccessful.  Accordingly, she was very much at risk of redundancy.

4.	The Employment Tribunal decided as a matter of fact that the Claimant was offered three options.  Two of them were to work at a lower grade than the band 8A position which she previously held, namely band 7.  They were, respectively, a Nursing Team Manager Community in Teignmouth, and a Nursing Team Manager Community based in a number of different places, including Dawlish.

5.	In fact, during November 2008, the Claimant worked a four-week statutory trial period in respect of the Nursing Team Manager Community position in Teignmouth, but resigned this position and, consequently, claimed a redundancy payment.  The band 7 jobs effectively ceased to be relevant to the litigation because the ET concluded that neither of them constituted suitable alternative employment and that the Appellant was not unreasonable in refusing them, because of the loss of status. That conclusion has not been challenged by way of cross appeal.

6.	The third option which was offered to the Appellant, involved no loss of status or financial loss because it was a band 8A position.  The offer was to be appointed to the position of Modern Matron at Teignmouth Hospital.  This was offered to the Appellant in a letter dated 28 July 2008.  The letter acknowledged that it was a different job to the one she currently enjoyed.  The letter, in terms, said that the Respondent would agree a development and support plan and, whilst it is right to say that the context of the sending of that letter was a series of meetings, the last of which was 24 July, before that letter was written, the terms of the letter itself, whilst referring to the fact that they would agree a development and support plan, do not invite the Appellant to discuss the implications of the job or the job content before responding to it.  Rather, it is written, as one would expect from such a formal letter, in a somewhat formal fashion, inviting her to respond to the offer, which the Respondent thought was an offer of suitable alternative employment.  If she were to refuse the offer, then the Respondent would consider whether or not it thought her refusal was unreasonable and, accordingly, would decide whether or not to make a redundancy payment.

7.	The Appellant did not immediately respond to that letter and was nudged, on 15 August, to give a reply and, in fact, was given until 22 August to do so.  That time was further extended to 27 August and the Appellant responded to that offer by a letter of 26 August.  The Tribunal, at paragraph 18 of their decision, encapsulated the essential features of that reply, which were emphasised in that letter in the form of bullet points, in the following terms: “..saying that her career path and qualifications were in Community Nursing.  She had not worked in a hospital setting since 1985 and she had no desire to do so”.

8.	It was the circumstances of her refusal of that offer which formed the heart of the case.  In particular, the Respondent refused to make a redundancy payment, relying on s.141 of the Employment Rights Act 1996, which is a section which applies where an offer is made to an employee before the end of his employment, either to renew his contract of employment or to reengage him under a new contract of employment.  Subsection (2) provides that, where subsection (3) of that section is satisfied, the employee is not entitled to a redundancy payment if he unreasonably refuses the offer.  Subsection (3) is satisfied where, as is relevant for this case:

“(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.”

9.	Thus the Employment Tribunal had to consider two issues: first, whether the offer of employment was an offer of suitable employment; and, second, whether the employee had unreasonably refused that offer.  The Tribunal made a number of relevant findings of fact.  First, in relation to the emigration to Canada issue, at paragraph 9, they found as follows:

“9.	The Claimant and her family had aspirations throughout this time to emigrate to Canada.  She had made a number of applications during the previous two or three years.  Eventually she succeeded in her application and has emigrated to Vancouver where she now works as a community nurse.  She made the application for this job in early October 2008, and received a provisional offer subject to a work permit and medical report on 18 November 2008.  She moved to Vancouver in May 2009.”

10.	In this context, it is of relevance that she did not apply for the job which she was subsequently offered in Canada, until after she had refused the band 8A Modern Hospital Matron job in the middle of August.  On the other hand, she had terminated the four-week statutory trial period in respect of one of the Band 7 jobs immediately upon having received the job offer from Canada, which she ultimately accepted and went to Canada to undertake.

11.	The Tribunal also considered the differences between the band 8A Hospital Matron job at Teignmouth Hospital and the Community Matron role which she had previously performed.  In paragraph 16 they broke down the Community Matron role in percentage terms, as comprising three main elements, namely: Professional Lead, which amounted to some 10 per cent of the duties; the Community Matron role, which was about 45 per cent of her duties; and the remaining 45 per cent which was as Team Leader or Clinical Leader.  They found as follows:

“16. The Modern Matron hospital job only differed in respect of the second element, part of the forty five percent of duties which were Community Matron responsibilities, because the emphasis would now be on being a matron in a hospital setting, albeit a relatively small community hospital.”

12.	The Tribunal also considered the context of the position of Modern Hospital Matron at Teignmouth Hospital as being within a relatively small community hospital with only 12 beds, where the Claimant already had her office base and, indeed, where it was accepted that she conducted one of outpatient clinics.  The Tribunal found as a fact, at paragraph 18, that the Claimant rejected this job “almost out of hand”.

13.	What they meant by that is described further on in paragraph 18, in the following passage:

“18. We accept at first glance it appears to be a change in career from Community Nursing to Hospital Nursing, but the claimant did not seek to explore what the job specification might entail, what duties might be transferable or otherwise of concern, or what training and other mentoring or support might be available.  She confirmed in cross-examination that she had no desire to work in a hospital setting.”

14.	The Tribunal turned to the two issues with which they had to contend.  Before we turn to the way in which they expressed themselves on so doing, we remind ourselves of certain of the relevant legal principles.  First of all, we remind ourselves of an extract from Harvey on Industrial Relations and Employment Law, paragraph 1489, which concerns suitability, where it is said:

“[1489] It is for the Tribunal to make an objective assessment of the job offered […] It is not, however, an entirely objective test, in that the question is […] whether it is suitable in relation to that particular employee [that is] […] does it suit his skills, aptitudes and experience.”

15.	By way of contrast, the second issue, unreasonable refusal of the offer, is summarised in the same volume at paragraph 1552, as follows:

“[1552] The question is not whether a reasonable employee would have accepted the employer’s offer, but whether that particular employee, taking into account his personal circumstances, was being reasonable in refusing the offer: did he have sound and justifiable reasons for turning down the offer?”

16.	There is then a citation from a case which has been cited to us, Everest’s Executors v Cox [1980] ICR 415, which reads as follows:

“The employee’s behaviour and conduct must be judged, looking at it from her point of view, on the basis of the facts as they appeared, or ought reasonably to have appeared, to her at the time the decision had to be made.”

17.	We have been reminded of the proposition of law established in Cambridge & District Co-operative Society Ltd v Ruse [1993] IRLR 156, that an employee can refuse an offer of employment which a Tribunal concludes was a suitable offer of employment, for reasons which relate to the employee’s perception of what the offer amounts to, and still act reasonably.  There is, therefore, nothing inconsistent with an employee reasonably refusing an offer for reasons personal to him, based upon his perception of what the job offer amounts to, even though the Tribunal may conclude that the offer was, in fact, a suitable offer for that particular employee.

18.	It is not suggested that the Tribunal, in this case, fell into that error.  The error, which Mr Cooper said the Tribunal fell into, is more fundamental than that.  What he says is that the Tribunal has, in effect, substituted its own judgment for that of the Appellant and, in effect, asked itself the question whether a reasonable employee would have accepted the employer’s offer and concluded that a reasonable employee would have done, rather than asking whether the particular employee was reasonable in refusing it.

19.	Mr Cooper does not seek to pursue another argument which appeared to have been in issue on this appeal: that the offer of the grade 8A Teignmouth Hospital Matron position was not an offer of suitable employment. We agree with his judgment in that respect.  It is, however, important to see the way in which the Tribunal dealt with that issue immediately before it turned to the question of unreasonable refusal.

20.	In paragraph 24, the Tribunal pointed out that the offer was identical to the current role in status, pay, professional lead and nursing management responsibilities.  They commented that it only differed in that it was no longer community based but was in a hospital setting.  They then went on to describe that hospital setting, to which we have already referred, namely that she already had her office at the hospital.  It was a small, 12 bed community hospital.  She knew many of the staff, the GPs, the procedures and the layout of the hospital.

21.	The Tribunal acknowledged that it was true that she would be supervising the care of patients in that hospital rather than in their homes, but commented that her skill set was transferable.  It commented that she would need to learn, or to re-familiarise herself with certain procedures, but that none of these would require any extensive training or separate qualification and could be acquired easily with peer mentoring or assistance.  In that respect, they were reflecting the evidence which the Appellant had given in the course of cross-examination.

22.	The Tribunal then concluded, at paragraph 24, in the following terms: “for these reasons we find that the offer of this position was one of suitable alternative employment.” In our judgment, they cannot be criticised for making that finding.  They then turn, in paragraph 25, to deal with the question of the Claimant’s refusal of that position.  They say as follows:

“25. We find that the claimant rejected this offer without any considered attempt to explore what aspects, if any, of her current job would be lost, and what other duties might be required.  The refusal was against her desire to emigrate and her desire if possible to be able to take advantage of her redundancy rights and benefits.  For these reasons we find that the claimant unreasonably refused this offer of suitable alternative employment.”

23.	We have been helpfully reminded by Ms Cunningham, who has appeared for the Respondent, of the care we have to take in considering whether or not a Tribunal has erred in law, where it has made specific findings of fact and come to a decision which, on the face of it, is within their discretion.  We have been reminded of the recent restatement of the position by the then President of the Employment Appeal Tribunal, Elias J (as he then was) in the case of Associated Society of Locomotive Engineers & Fireman v Brady [2006] IRLR 576, and in particular at paragraph 55:

“55. The EAT must respect the factual findings of the employment tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not ‘use a fine tooth comb’ to subject the reasons of the employment tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the tribunal has essentially properly directed itself on the relevant law.”

24.	Against that background, we therefore consider the argument made on behalf of the Appellant.  The fundamental finding of fact, which was relevant to this part of the decision of the Employment Tribunal, was its finding as to the reason given by the Appellant as to why she refused the offer of suitable employment.  Against the test, was that reason sound and justifiable?

25.	The evidence repeated by the Appellant on a number of occasions and in a number of different contexts, was that her reason for refusing the job was that her career path and qualifications were in Community Nursing.  She had not worked in a hospital setting since 1985 and she had no desire to do so.  She had said that in her letter of 26 August 2008, rejecting the offer.  She had repeated that in the Tribunal in her cross-examination.  She had also stated it in the course of a grievance meeting on 2 October 2008, when she said that she had no desire to work in a hospital setting.

26.	One would have thought that, at the heart of this decision, which the Tribunal had to make, would have been consideration by the Tribunal whether such a reason given by this particular individual, given her career in nursing thus far, constituted a sound and justifiable reason of turning down the offer, within the context of the type of hospital setting within which her work of nursing would henceforth have to be delivered.

27.	We look in vain, in paragraph 25, for any consideration by the Tribunal of that issue in those terms.  What the Tribunal does is to focus on a number of other issues, namely the fact that she did not, though not invited to by the offer letter, take the initiative to explore what aspects, if any, of her current job would be lost, and what other duties might be required.

28.	The Tribunal specifically referred to the background of her desire to emigrate, even though the refusal of this offer was not in the context of her having applied for, let alone been offered, a job in Canada, all of which occurred subsequently to her refusal of that job offer. They also referred to her desire, as stated in the course of a grievance meeting, to “take the money and run”.

29.	Whilst it may be that those two elements were strands in her thinking, it was never suggested by the Respondent in the course of the Tribunal hearing, as far as we have seen (based on the Respondent’s own notes of the cross-examination), that the reason that she had given initially in August, repeated in her evidence and repeated at the grievance meeting, namely that, given her career path since 1985 she had no desire to work in a hospital setting, was anything other than at the core of her reason for refusing this offer.

30.	In our judgment, this Tribunal erred fundamentally in failing to address the core reason for the Appellant refusing the offer which, they had rightly concluded, was a suitable offer.  They failed to consider, whatever may have been the circumstances of the offer and however easily it may have been for her to re-familiarise herself with certain of the mundane aspects of hospital life, whether her basic decision - that she had no desire to work again in a hospital setting, where she had not done so for more than 23 years of her career - constituted a sound and justifiable reason for turning down the offer. 

31.	We have no doubt, from the way in which the Tribunal went about its business and, in particular, in paragraphs 24 and 25, that the Tribunal was of the view that a reasonable employee would have accepted the employer’s offer, but in our judgment this Tribunal wholly failed to grapple with the question of whether it was unreasonable for this employee, for the reasons which she gave, to accept that offer.  It failed entirely to grapple with the question of whether the reason which she gave, as the fundamental reason for refusing it, was sound and justifiable or whether it was unreasonable for her to have taken that position.

32.	Accordingly, in our judgment, the Tribunal’s decision is fundamentally flawed as a matter of law, and this appeal must succeed.  The question arises whether this case should be remitted to the same or a differently constituted Tribunal or whether we are in as good as a position, as any Tribunal would be, to resolve the question.  We have been greatly assisted by the parties having placed before us the evidence which was given below, and we have had read to us the relevant correspondence comprising the job offer of 28 July and the letter rejecting it of 26 August, both of 2008.  We are happy that we are in a position to determine the question which the Tribunal failed to ask itself.

33.	In our judgment, the reason for the Appellant refusing the job had nothing to do with the question whether she could be easily retrained in certain of the basic administration skills - required for somebody working as a Hospital Matron, rather than someone working as a Matron in the community - her evidence before the Tribunal was very clear that she would have no difficulty performing that retraining.  Her main objection was the fact that she had taken a considered decision in 1985 to move away from working and delivering nursing in a hospital setting, in favour of delivering her nursing skills in a community setting.

34.	She had continued in that setting for some 23 years.  She had tried, for a trial period, working in a community setting at a lower grade for four weeks, as we have indicated.  The delivery of nursing in the community setting was plainly an element of change in the job which she was doing, compared with the job which she was offering.  The Tribunal accepted that and made findings of fact, that the emphasis would now be on being a matron in a hospital setting, as opposed to in a community setting.

35.	In our judgment, that desire not to work in a hospital setting, in the particular circumstances of this Appellant, did provide her with a sound and justifiable reason for turning the offer down.  The fact that she may have had in the background an idea that she would like to go to Canada, and the fact that she might prefer to have the redundancy money, rather than to work in a hospital setting, whilst no doubt they were to some extent influences on her, were plainly not the main reason for her refusal, which was set out in her letter of 26 August and repeated on more than one occasion thereafter.

36.	Accordingly, this appeal succeeds and we substitute a finding that the Appellant was entitled to receive a redundancy payment in place of the decision of the Tribunal which dismissed her claim for a redundancy payment.