United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 237_93_0911

Appeal No. EAT/237/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9th November 1993

Before

HIS HONOUR JUDGE J BULL QC

MR A C BLYGHTON

MR J C RAMSAY

---

EAST SURREY HEALTH AUTHORITY          APPELLANTS

MISS F GOOD          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellants MR J WARREN

Solicitor

John Warren

Solicitors

11 High Street

Ewell

Surrey

KT17 1SG


 


JUDGE J BULL QC: This is the preliminary ex parte hearing of an appeal by the East Surrey Health Authority from the decision of an Industrial Tribunal sitting at London (South) under the Chairmanship of Mr Oliver Lodge on the 6th October 1992, that the Applicant, Miss Fiona Good had been unfairly dismissed.

The Applicant had been employed by the respondent Authority since the 1st August 1985 and was appointed as a Project Commissioning Nurse to a new hospital in 1989 with the task of ensuring that all necessary facilities were available when that hospital opened. By September 1991 that work was concluded and she was employed on a number of short-term projects until she was given notice on the 31st December terminating her employment on the 31st March 1992 upon the grounds of redundancy.

The Industrial Tribunal found that although no suitable alternative employment existed in the Applicant's grade nonetheless upon the evidence they found that there were nursing vacancies available in grades below that of the Applicant within the respondent Authority's area both immediately before the date on which she was given notice and during the period of that notice. The Tribunal continued, in paragraph 6 of their decision, to say this:

"8. The Applicant said in evidence that she would have been prepared to take a post at a lower grade. Mr Durham said in evidence that he did not know this. The reason for his ignorance however was because he had not asked the Applicant. If she had been appointed to one of the available vacancies at a lower grade she would probably have suffered a drop in salary. Nevertheless, we consider the failure of the Respondent to ask the Applicant whether she would be prepared to accept such a position was unreasonable. Half a loaf is better than no bread.

7. In the circumstances, including the size and administrative resources of the Respondent and having regard to equity and the substantial merits of the case, we are not satisfied that the Respondent acted reasonably in treating redundancy as a sufficient reason for dismissing the Applicant. We find that she was unfairly dismissed."

Against these findings, Mr Warren, on behalf of the Authority, appeals to this Tribunal claiming first that the Industrial Tribunal erred in finding that the Respondent was unreasonable in failing to ask the Applicant if she would consider working in a different nursing vacancy at a lower grade. Additionally, he makes criticism of the Tribunal saying that the Applicant's evidence, that she would have been prepared to take a post at a lower grade, was inconsistent with the events which actually happened. He comments that no application or any interest whatsoever was expressed by this Applicant at any post of a lesser grade than that at which she was employed. Finally, he makes complaint that under Rule 45 of the Whitley Council Regulations, which were before the Industrial Tribunal, the basis upon which the Tribunal proceeded was erroneous. He points out to us that in the climate of financial stringency within which the East Surrey Health Authority is obliged to work that there are very strong constraints upon the area of manoeuvre of that Authority.

We of course take all these complaints fully into account, as we do the other matters which have been made with force and clarity by Mr Warren on behalf of the Authority, but in our unanimous view this Industrial Tribunal had the privilege, which is of course completely denied to us because we are a Tribunal of law and not of fact, of assessing the evidence, of testing it, and of forming their views upon it. In these circumstances it would be quite idle for us to say that we have a better view than the Industrial Tribunal. We can detect no error of law in the approach of this Industrial Tribunal and most certainly we cannot say that in any of the respects which are put forward with such courtesy by Mr Warren, or indeed any other respect which occurs to us, that this Industrial Tribunal acted in a way or reached a conclusion that no reasonable tribunal could have done.

It follows therefore that there being no point of law here we must dismiss this appeal and we so do.