Appeal No. UKEAT/0324/12/DM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
10 January 2013
Before
HIS
HONOUR JUDGE PETER CLARK
MR M CLANCY
MR D SMITH
(1)
MR M D SANDFORD APPELLANTS
(2) MR G PARKIN
NEWCASTLE
UPON TYNE HOSPITALS NHS FOUNDATION TRUST RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal
SOSR dismissals. New, less favourable terms and conditions of
employment offered and refused by Claimants. Contracted terminated on notice
with offer of re-engagement (the accepted). ET held’ dismissal fair. No error
of law shown. Claimants’ appeals dismissed.
HIS HONOUR JUDGE PETER CLARK
Introduction
1.
This is an appeal by the Claimants, Messrs Sandford and Parkin, against
the reserved Judgment of an Employment Tribunal sitting at Newcastle upon Tyne,
promulgated with reasons on 16 March 2012 dismissing their claims of unfair
dismissal. Further complaints for unauthorised deductions from wages by both
Claimants were also dismissed; that ruling does not form any part of this
appeal.
2.
The Respondent here and below is their former employer, Newcastle upon Tyne Hospitals NHS Foundation Trust. Unusually for an unfair dismissal case
the Employment Tribunal hearing took 14 days and the Tribunal then spent three
days deliberating in private.
Background
3.
In essence, following the well known Agenda for Change process (AFC) completed
in 2004, the Respondent in the course of a reorganisation decided to re-band
the posts of 22 employees, including the two Claimants, who were to be reduced
one level in the pay structure. All were offered two years pay protection if
they accepted the proposed change; 20 employees did so and received that
protection. The Claimants refused; their contracts of employment were
terminated on notice with an offer of re-engagement on the lower band but
without pay protection. They chose to continue in employment on those terms.
The Tribunal decision
4.
The Tribunal had to determine, a) what was the reason for the Claimants
dismissal. The Respondent relied on some other substantial reason (SOSR); b) if
that potentially fair reason was made out, was dismissal for that reason reasonable
under section 98(4) of the Employment Rights Act 1996 (ERA).
5.
As to the first question, the Tribunal found the Respondent had shown a
good business reason for undertaking the reorganisation leading to the
re-banding and that both Claimants were dismissed for refusing to accept the
new terms and conditions. Applying Hollister v National Farmers Union
[1979] IRLR 238 (Court of Appeal), St John of God Care Services v Brooks
[1992] ICR 715 and Catamaran Cruisers Ltd v Williams [1994] IRLR 386, the Tribunal found that the potentially fair reason, SOSR, had been made
out by the Respondent. As to fairness the Tribunal found that there had been
an absence of consultation both with the trade union and the individual
Claimants, leading to breaches of the AFC procedure, but overall concluded that
dismissal fell within the band of reasonable responses and was fair.
The appeal
6.
In advancing the appeal Ms Callan does not challenge the Tribunal’s
finding that the reason for dismissal was SOSR. Instead her attack is directed
to the finding that dismissal for that reason was fair under section 98(4). In
challenging that conclusion Ms Callan focuses on the Tribunal’s findings
summarised at paragraph 20.4 that neither collectively nor individually did the
Respondent consult with either the Claimants or their trade union in any real
sense. She submits that the Tribunal fell into error in failing to take those
findings into account when addressing the section 98(4) question, particularly
at paragraph 12.12.
7.
We accept Ms Stout’s answer to that submission. First the breaches of
the partnership principal established by AFC occurred well before the
disciplinary process leading to the dismissals effective in December 2010. That
said, the Tribunal plainly did not disregard the background; see paragraphs
20.6 and 20.12 itself.
8.
Secondly, they carried out the exercise required by section 98(4). They
judged the fairness of the dismissal as at the effective date of termination of
the contracts of employment in December 2010. Ms Stout cited passages from
decisions of the EAT in Garside & Laycock Ltd & Booth
[2011] IRLR 735; para.14 to 15, St John of God Care Services,
719F and 720F to G, Catamaran Cruises Ltd paras. 26 to 27 and in
the Court of Appeal decision in Gilham v Kent County Council
[1985] ICR 233, 244F. It is a question of fact for the Tribunal, as Griffiths
LJ observed in that passage from Gilham.
9.
Thirdly, the Tribunal took into account three relevant factors in
reaching its conclusion that dismissal for the prescribed reasons, SOSR, fell
within the band of reasonable responses. First, that 91% of the affected
employees had accepted the new terms; that is a material factor as is made
clear in Brooks at page 722D, Catamaran Cruises
paragraph 28(4) and by Burton J in Scott & Co v Richardson
UKEAT/0074/04, 26 April 2005 at paragraph 28 by reference to the earlier
decision of Lord Johnston sitting in the EAT in Scotland in Grampian
Country Food Group Ltd v McInally EATS/0035/04. We do not accept Ms
Callan’s submission that the Tribunal placed undue weight on that relevant
factor.
10.
Secondly their finding that the Respondent had reasonably explored all
alternatives to dismissal before dismissing the Claimants. There is no
criticism of the disciplinary process followed by the Respondent in respect of
the two Claimants. Thirdly, they noted at paragraph 20.9 the lack of opposition
by the trade unions to the proposed changes.
11.
In these circumstances, we are not persuaded that the Tribunal
misdirected themselves in law; on the contrary they applied the law correctly
to the facts as found and reached a permissible properly reasoned conclusion
that the dismissals were fair. We reject Ms Callan’s suggestion that the
Tribunal’s reasons were not Meek compliant. Plainly they were.
This is a well reasoned Tribunal Judgment which in our collective view speaks
for itself without any additional burnishing by this Appeal Tribunal.
12.
In these circumstances, were we to interfere with the Tribunal’s
conclusion we would be guilty of the error identified by Longmore LJ in Bowater
v North West London Hospitals [2011] IRLR 331 paragraph 19 of
substituting our Judgment for that of the ET under the guise of perversity;
there is no perversity in this Tribunal’s conclusion.
13.
Finally, Ms Stout raised a challenge in argument to the apparent finding
by the Tribunal at paragraph 17.4 to 17.6 that the job evaluation handbook,
part of the AFC process, was incorporated into the individual contracts of
employment. We wish to make it clear that that finding is wholly immaterial to
our consideration of this appeal and we make no comment on that finding.
14.
In these circumstances the appeal fails and is dismissed.
