England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2A 2LL
		6 February 2013

LORD JUSTICE PILL:

1. This is an appeal by Devon Primary Care Trust ("the Trust") against decisions of the Employment Appeal Tribunal ("EAT"), Wilkie J presiding, dated 1 December 2011 and 13 April 2012.
2. In an earlier decision the EAT allowed an appeal by Mrs SB Readman (the respondent) from a decision of the Employment Tribunal (the Tribunal) sent to parties on 22 September 2009 followed by reasons dated 29 October 2009.
3. The hearing was held at Taunton, Employment Judge Roper presiding. The Tribunal found that the respondent was not entitled to a statutory redundancy payment.
4. In its first decision, the EAT allowed the appeal and substituted a finding that the respondent was entitled to receive a statutory redundancy payment, and its second decision refused an application to review that decision. Subject to liability, the amount of the redundancy payment is agreed at £8,575, but we are told that further claims may turn on the decision of this appeal.

The facts

5. The respondent had been employed as a nurse by the Trust or its predecessors from 1976. In 1985 she began community nursing and in 1995 was promoted to district nurse team leader. By further promotion the respondent became community modern matron, with the responsibility of running community and district nursing in the coastal locality of Teignmouth and Dornish. She was managing about 120 staff. This was a band 8A professional lead role.
6. Following an amalgamation of services the respondent was told in November 2007 that she was at risk for redundancy. The respondent was unsuccessful in her application for a band 8A professional lead role in the new structure.
7. Three options were then offered to the respondent: the first as a nurse team manager (community) Teignmouth; and the second in such a post at any of a number of locations. These were at a lower grade (band 7) and involved a loss of status, a loss of professional lead responsibilities and some financial loss. The third option was an offer to become a modern matron at Teignmouth Hospital, a small community hospital with 12 beds. That was a band 8A role. The respondent already had her office base there. In that role about 10 per cent of the duties would have been by way of senior management responsibility, about 45 per cent in the role of hospital modern matron and 45 per cent as team leader/clinical leader.
8. The Tribunal found that the only difference from the earlier employment was in the replacement of 45 per cent of duties as a community matron by 45 per cent as a matron in a small hospital. That offer was rejected, as the Tribunal put it, "almost out of hand" by letter dated 26 August 2008, the respondent saying that her career path and qualifications were in community nursing; she had not worked in a hospital since 1985 and had no desire to do so. The Tribunal found that the respondent already knew the hospital layout and many of the general practitioners and staff, and would need only to familiarise herself with procedures in nursing and administration. Her "skill set", as the Tribunal put it, was transferable. The respondent attended for one of the community positions offered on a trial basis, but decided not to proceed with it.
9. The Tribunal held in her favour that the band 7 community positions were not offers of suitable alternative employment within the meaning of section 141(3)(b) of the Employment Rights Act 1996 ("the 1996 Act") set out below. The Tribunal also found that the respondent and her family had "aspirations" to emigrate to Canada. She applied for a job there in early October 2008, received a provisional offer on 18 November 2008 and moved to Vancouver in May 2009. The Tribunal noted that the respondent had decided to terminate the trial period as nurse team manager (community) immediately after receiving the job offer from Canada. The Tribunal stated at paragraph 22:

"The reasonableness or otherwise of the refusal depends on factors personal to the employee and is assessed subjectively from the employee's point of view at the time of the refusal. To this extent precedents can only be of limited guidance."

10. The Tribunal expressed its conclusions at paragraphs 24 and 25:

"24. We now turn to the Teignmouth Hospital matron position. This offer was identical to the claimant's current, soon to be redundant, position in status and pay and with regards to the professionally and nursing management responsibilities. It only differed in that it was no longer community based, but was in a hospital setting. However, we find that the claimant was not being asked to move to a large inner city acute hospital setting; she already had her office in Teignmouth Hospital which was a small 12 bed community hospital. She knew many of the staff, the GPs, the procedures and the layout of the hospital. It is true that she would be supervising the care of patients in that hospital rather than in their homes, but her skill set was transferable. She would need to learn or to familiarise herself with certain procedures, but none of these would require any extensive training or separate qualification and could be acquired easily with clear monitoring assistance. For these reasons we find that the offer of this position was one of suitable alternative employment."

11. I interpose that the findings there reflect the finding of earlier paragraphs of the determination.

"25. We now turn to the claimant's refusal of that position. 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 the 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."

The statute

12. Section 141 of the 1996 Act provides:

"141 Renewal of contract or re-engagement

(1) This section applies where an offer (whether in writing or not) is made to an employee before the end of his employment—

(a) to renew his contract of employment, or

(b) to re-engage him under a new contract of employment, with renewal or re-engagement to take effect either immediately on, or after an interval of not more than four weeks after, the end of his employment.

(2) Where subsection (3) is satisfied, the employee is not entitled to a redundancy payment if he unreasonably refuses the offer.

(3) This subsection is satisfied where—

(a) the provisions of the contract as renewed, or of the new contract, as to—

(i) the capacity and place in which the employee would be employed, and

(ii) the other terms and conditions of his employment would not differ from the corresponding provisions of the previous contract, or

(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.

(4) The employee is not entitled to a redundancy payment if—

(a) his contract of employment is renewed, or he is re-engaged under a new contract of employment, in pursuance of the offer,

(b) the provisions of the contract as renewed or new contract as to the capacity or place in which he is employed or the other terms and conditions of his employment differ (wholly or in part) from the corresponding provisions of the previous contract,

(c) the employment is suitable in relation to him, and

(d) during the trial period he unreasonably terminates the contract, or unreasonably gives notice to terminate it and it is in consequence terminated."

13. Thus, in the statutory language on an application of section 141, the Tribunal found that section 141(3) was satisfied in that the offer constituted an offer of suitable employment in relation to the employee under subsection (3)(b) and found that it was unreasonably refused by the respondent under section (2). The finding under section 141(3) has not been challenged.
14. The case went before the EAT following a successful rule 3(10) application by the respondent on 23 March 2011. Before the EAT it was submitted on behalf of the respondent that her community matron role, which was about 45 per cent of her duties, would no longer be present. In 1985 she had taken a deliberate decision to work in the community, and not having worked in a hospital setting for 23 years it was not unreasonable for her to decline to revert to working in such a setting. She had demonstrated a commitment to community nursing including by attempting a band 7 job found not to be a suitable offer. Her desire to emigrate to Canada was only a background consideration.
15. In both decisions, the EAT accepted those submissions. It stated in the first at paragraph 26 that the issue was whether the respondent's reason "given her career in nursing thus far constituted a sound and justifiable reason for 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".
16. At paragraph 30 the EAT stated:

"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 the reason there 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."

17. At paragraph 35 the EAT concluded:

"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 move to Canada, 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."

18. In response to the trust's application for a review, the EAT reached the same conclusion. Its conclusion was (paragraph 36):

"In all these circumstances our unanimous view, particularly the views of the lay members of the panel, is that it is plain and obvious that the appellant's decision to refuse the band 8A job for the reasons she gave and viewed from her point of view was within the band of reasonable responses which were open to her. In our judgment the contrary is unarguable.

37. Accordingly, we have concluded that upon the facts found by the Employment Tribunal, which do not require further amplification or reinvestigation, the conclusion reached by the ET as a result of its misdirection was plainly and unarguably wrong upon those facts. In those circumstances we are entitled and are bound to substitute our own conclusion as to what those findings required in law."

19. I will comment later on the EAT's introduction of the concept of "band of reasonable responses" in paragraph 36 of the second determination.

The issues

20. Two issues arise, the first is whether, as the EAT found, the Tribunal erred in law in its consideration of whether the respondent unreasonably refused the offer of employment. If it did, the second issue is whether the EAT was entitled to substitute its own view, or whether it should have remitted the case to the Tribunal as fact-finding Tribunal. At its first hearing, the EAT relied on the first issue on the test provided by Phillips J in the EAT in Everest's Executors v Cox [1980] ICR 415 at page 418:

"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."

21. The Tribunal applied the correct test, in my judgment, at paragraph 22, when it stated:

"The reasonableness or otherwise of the refusal depends on factors personal to the employee and is assessed subjectivity from the employee's point of view at the time of the refusal. By way of illustration of the application of the section, in Fuller v Stephanie Bowman (Sales) Ltd [1977] IRLR 87, a secretary refused to move to new offices because they were located over a sex shop. The Tribunal concluded that the claimant was being unduly sensitive and held her refusal to be unreasonable. It was however stated that the test was not the attitude of a reasonable woman, but the reasonable objections of that claimant."

22. In seeking to uphold the Tribunal's decision Ms Cunningham for the appellant relies on the Tribunal's finding which it was entitled to make in terms of status, pay, professional need and nursing management responsibilities. The hospital offer was identical to the respondent's previous role. It was for the Tribunal and the Tribunal alone to decide from the respondent's perspective whether the stated reason that she had no desire to work in hospital was in the circumstances reasonable or unreasonable. The Tribunal was entitled to conclude that it was not a sound and justifiable reason in this regard. Ms Cunningham relies on the findings of the Tribunal summarised above and submitted that paragraph 25 should be considered in the light of them. Considered in that way, the reason for the conclusion can be read into paragraph 25, it was submitted. When pressed, Ms Cunningham did have difficulty in stating just what the Tribunal's reasons were. In relation to both issues Ms Cunningham submits that the EAT embarked on an impromptu reconsideration of the facts. The Tribunal is the fact-finding Tribunal and the EAT was not entitled to find (paragraph 55) that the fact that she might want to go to Canada was plainly not the reason for her refusal. It was the Tribunal's task to assess the evidence and reach conclusions on such issues. The EAT should have accepted the Tribunal's findings of fact and not, for example, had regard to the contents of documents such as the minutes after the meeting at which the respondent is recorded as saying that what she wanted was to take her money and run. That was one answer amongst a series of answers when she was cross-examined.

Conclusions on issue 1

23. Having stated the correct test in paragraph 22, the Tribunal erred in law, in my judgment, in applying it. The Tribunal did not address the central point made by the respondent. Having spent 30 years working in the community it was not unreasonable to decline to work in a hospital, albeit a small one. Work would now all be done in the hospital, whereas a substantial part of it had for many years been done in the community. It was insufficient merely to refer to paragraph 25 to the alleged lack of "any considered attempt to explore" what would be lost and what would replace it. The Tribunal should have addressed directly the prior question whether it was unreasonable for the respondent to decline to work in this hospital.
24. I agree with the EAT that the Tribunal "erred fundamentally" in failing to address this "core reason". I agree with paragraph 30 of the EAT's first decision.
25. Further, the relevance of emigration plans required further analysis, if they were to be found as a reason for the refusal. The Tribunal declined to find expressly that the job was refused because the respondent was emigrating. The somewhat vague statement that it was "against her desire to emigrate" was insufficient. Still further, a person's desire, if possible, to take advantage of redundancy rights does not necessarily defeat her claim. An employee may be conscious of the benefits of a redundancy payment but still give adequate consideration to a job offer.
26. In my judgment, the analysis conducted by the Tribunal was so inadequate as to amount to an error of law.

Issue 2

27. Whether in that event the EAT should have remitted the case to the Tribunal I found more difficult. The test was stated by Sir John Donaldson MR in Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 at 818G:

"Once you detect that there has been a misdirection, particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the Tribunal is plainly wrong, but whether it is plainly unarguably right notwithstanding that misdirection. It is only if it is plainly unarguably right notwithstanding the misdirection that the decision can stand. If the conclusion is wrong or might have been wrong, then it is for an appeal at Tribunal to remit the case to the only Tribunal which it is charged with making findings of fact."

28. Mr Cooper also referred to the judgment of Slade LJ in Hellyer Brothers Ltd v McLeod [1987] ICR 526, where Slade LJ contemplated a situation in which facts did not require "further amplification or reinvestigation". The court was "entitled and bound to substitute our own conclusion as to what those findings required in law". That language is of course reflected in the judgments of the EAT. Mr Cooper also referred to the statement of Jacob LJ in Bournemouth University Higher Education Corporation v Buckland [2010] ICR 908 at paragraph 58, that generally sending a case back should be used only as a last resort. He used the expression "ping pong". In the light of those statements Mr Cooper submits that all the evidence was before the EAT, the circumstances were fully described in the Tribunal's judgment and its findings of fact were not challenged. The EAT could conduct its own analysis, the ET having failed to address the central issue. On the central issue, whether it was reasonable for the respondent to refuse the offer of employment at Teignmouth Hospital, there could, it is submitted, only have been one answer, namely that it was reasonable. It would have involved a fundamental change to the focus of the respondent's career. Remittal would only prolong the agony, as Mr Cooper put it.
29. I have reluctantly come to the conclusion, notwithstanding the protracted course proceedings have taken, that remittal to the Tribunal as fact-finding Tribunal is necessary. By way of example, the EAT stated in Cambridge and District Co-operative Society v Ruse [1993] IRLR 156 that "the question of the reasonableness of the refusal is a matter of fact for the Tribunal."
30. In the interests of not wishing to prejudice the deliberations of the Tribunal, I express my conclusions briefly. A central issue was whether in all the circumstances the respondent's refusal to work in this hospital setting was reasonable or unreasonable. I am not able to find the Tribunal's decision was "plainly and unarguably wrong", or that the contrary result is "plain and obvious" as the EAT found. The judgment by a fact-finding Tribunal that on the evidence the respondent acted reasonably in refusing the offer would not inevitably be in the respondent's favour. My conclusion does not depend only on this further point, but I add that the EAT's reliance on paragraph 36 of its second decision on the reasonable responses test was, in my judgment, misplaced. I do not find it helpful to import into a section 141 analysis the reasonable test used in unfair dismissal cases (Iceland Frozen Foods v Jones [1983] ICR 17, per Brown-Wilkinson J at page 24G to 25B). I do not find it helpful to apply that test in a section 141 context.
31. In unfair dismissal cases the Tribunal has to make a judgment on the evidence as to whether a decision to dismiss fell within the reasonable band of responses which a reasonable employer might have adopted. That is different from the test under section 141, which, as stated in Cox, involves a judgment as to whether an employee has unreasonably refused an offer, "Looking at it from her point of view on the basis of the facts as they appeared or ought reasonably have appeared to her at the time the decision had to be made." A specific judgment needs to be made, not a judgment on whether the decision fell within a reasonable band of responses which a reasonable employee might have made.
32. In unfair dismissal cases, the danger was perceived that Employment Tribunal members would put themselves in the position of the employer and make their decision on the basis of what they would have done in the circumstances. It has been made clear that their task is instead to decide whether dismissal by the employer was within the range of reasonable responses in the circumstances. The task under section 141(2)(b) is that stated in Cox, whether this particular employee in this particular situation acted reasonably in refusing the offer of employment. Cox is a clear test, and has been applied by Tribunals for 30 years. The Tribunal correctly stated it in this case. There is no justification in my judgment for complicating and distorting that test by importing into it the reasonable responses test applied to employers in unfair dismissal cases. That test was introduced by the EAT in its review decision in this case. It was absent from its first decision. The EAT appears to have taken the view that it gave a broader scope to the power to replace the Tribunal's conclusion with the EAT's own conclusion. That was not, in my view, permissible. Nor should Employment Tribunals depart from the Cox test. It may be that reliance on the wrong test has led the EAT to a conclusion at paragraphs 36 and 37 of the review decision which, in my view, was not justified.
33. For those reasons, I would allow the appeal and remit the case for consideration by the Employment Tribunal.

LORD JUSTICE SULLIVAN:

34. I agree.

LORD JUSTICE TOMLINSON:

35. I agree, but I wish particularly to associate myself with my Lord's consternation at the protracted nature of these proceedings which have now been before the Employment Tribunal on the original occasion, and before the Employment Appeal Tribunal on no less than four occasions. Nonetheless, I entirely agree with my Lord as to its proposed disposition.

Order: Appeal allowed