United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T PULLEN (of Counsel) Bruce Piper Director of Legal Services UNISON 1 Mabledon Place London WC1H 9AJ
For the Respondents	MR M K ZAMAN (of Counsel) Messrs Fraser Brown Solicitors 84 Friar Lane Nottingham NG1 6ED


 


JUDGE D M LEVY QC: We have before us an appeal from the decision of an Industrial Tribunal held at Nottingham on 11 December 1995. On that day the Industrial Tribunal had two Applicants before them, a Ms Bond and Mrs Ryalls. Both claimed that they had been unfairly dismissed by the Respondents from their employ in the Hollybank Nursing Home.

The background to the application was that one had been a matron and one had had a lesser position as employee in the Home. The Home had been upgraded and under the appropriate legislation, it was necessary to have a new matron who had higher nursing qualifications than Mrs Ryalls, who had been the matron.

The new matron was appointed. It is not clear whether or not Mrs Ryalls was offered, or exactly what other job she was offered by the employer, but what seems to have happened is a time came when she left, as did Ms Bond. They both claimed that they had been unfairly dismissed. As we say, the matter was heard by the Industrial Tribunal. They held that Ms Bond had been unfairly dismissed but they dismissed the claim made by Mrs Ryalls.

We have been taken both to their Summary Reasons and their Full Reasons. In the light of the submissions we have had made it may be appropriate to read both. The Summary Reasons first of all, which was sent to the parties on 10 October 1986:

"1. Ms Bond was offered a job at much lower salary. She was not consulted on that salary, which she did not like, but she says and we accept it, that she would have accepted the job at that lower salary because she could not afford not to.

2. She was dismissed on the assumption by the employer that she had not accepted the new contract. He made that assumption on what he had heard from Mrs Ryalls. We believe that the dismissal was unfair.

3. Mrs Ryalls was offered a job as a State Enrolled Nurse at a lower salary than that of matron. She could not do the work as matron as she did not have the right nursing qualification and the job of matron was done by Mrs Ettles who did have the right qualification. We do not find there is a redundancy within Section 81.

4. Mrs Ryalls was offered a new job at a lower salary also. Consistently she says she wanted the job but not at the salary offered. She was told there was no question of any increase in the offer, but nevertheless she hoped for one, and held out for one.

5. When she was given an ultimatum that she must make a decision one way or the other, she did not do so. She had a reasonable time within which to consider the office. Was this offer reasonable? We believe it was and it follows, therefore, that as she did not accept a reasonable offer of alternative employment within the nursing home, she could not be said to have been dismissed unfairly. Her application fails.

6. We find that Ms Bond is entitled to be paid compensation, and this matter will be adjourned for compensation to be agreed between the parties, with liberty to apply."

That was the Summary Reasons which the Chairman chose not to rely on when Extended Reasons were sought, and these were the Extended Reasons which were sent to the parties on 20 November 1995:

"1. The applicants were employed as matron and deputy matron at Hollybank Nursing Home which fell into financial difficulties. The respondents decided to change the Home into dual residential and nursing, but this required a registered general nurse as a matron. Neither of the applicants had that qualification. Mrs Ryalls was a state enrolled nurse and Ms Bond had no medical qualifications. Both of them understod their position and that their roles would change, but that all the remaining staff would carry on as before.

2. A staff meeting was held in May 1992 and they were all told of the proposed changes, and a new matron with the necessary nursing qualifications was appointed on 1 June 1992 to take over at the end of July. Mrs Ryalls was offered a job as a senior enrolled nurse (SEN) and Ms Bond a job as a care assistant but their salaries were lower than those paid as a matron and deputy. They both agreed that they wanted the jobs but neither of them were happy about the salaries which were proposed.

3. Mrs Ryalls said in evidence that she accepted the job but not the terms and conditions. The respondents say that the applicants had not, at the end of July, accepted the jobs and that they were taking advice. On 6 August 1992 Mr Drury, one of the proprietors, spoke to Mrs Ryalls asking her to give a decision before midnight, so that the matron could make up her rotas, because it was important to know how many staff were wishing to be available.

4. Mrs Ryalls said she heard of the new salary in the third week in July, and she could not accept the job until she knew the terms, and that it was unfair to reduce her salary. She said she would accept the job under duress and that she was seeking advice. She had hoped that Mr Drury would offer her more salary as a loyal member of the staff. She denied that she was told that if she did not accept the salary, there was no job. She agreed she was told 'there is no more on the table'.

5. She saw the respondents on 8 August and was asked if she was taking the job. She said she was always taking the job, it was the salary. She never accepted the job unconditionally. She said to Mr Drury 'make me redundant'. It is clear to the Tribunal that there was a reorganisation of the nursing home, that Mrs Ryall's job changed and she was offered different terms which she rejected. We do not find any unfair dismissal, and we do not find there was any redundancy.

6. As to Ms Bond, she also objected to the salary reduction, but she said she could not afford to lose her job, or to be without a job at whatever salary. She had no discussion with Mr Drury, and her information came through Mrs Ryalls. The respondents say that Ms Bond failed to take up their offer, and was not given an ultimatum, but she was dismissed and in the opinion of the Tribunal unfairly dismissed. She is entitled to compensation. The application in her case will be adjourned for compensation to be agreed, with liberty to apply."

Against that decision, Mrs Ryalls appeals. Mr Pullen, who appears for her, submits that a Tribunal is under a duty in its decisions, to give a summary of its basic factual conclusions and a statement of the reasons which have led it to reach those conclusions. The parties are entitled to be told why they have won or lost, and that of course, takes up the points made by Bingham LJ, when giving the leading judgment in Meek v City of Birmingham District Council [1987] IRLR 250, a case in which the then Master of the Rolls presided:

"The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises: and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."

Mr Pullen submits that the Appellant's case before the Tribunal was that she had been unfairly dismissed and/or made redundant. It therefore followed that the Tribunal had to make findings on the following:

"(i) whether the Appellant had been dismissed;

(ii) if so, the principal reason for dismissal;

(iii) whether the Appellant had been made redundant within the meaning of section 81 Employment Protection (Consolidation) Act 1978;

(iv) whether under section 57(3) Employment Protection Act 1978 the dismissal was fair or unfair."

Mr Pullen submitted that the Tribunal had failed to make any findings as to whether the Appellant was dismissed or not. They simply state at the end of paragraph 5 of the Extended Reasons:

"... We do not find any unfair dismissal, and we do not find there was any redundancy."

Mr Zaman who accepted, very properly, that the reasons given by the Industrial Tribunal were pithy, suggested that more could be found if we looked at the Summary Reasons, and if we considered the paragraph of their decision which related to the co-applicant, Ms Bond. We duly looked at those Summary Reasons, but they seemed to take the case no further.

It appeared to us that both ladies were taking up the same position on dismissal and it was not at all clear to us why it was that one had succeeded and the other had not.

Mr Pullen further submitted that it was impossible to tell whether the Tribunal reached the conclusion because it considered there was no dismissal, or because it found there was a dismissal. If the Tribunal found the latter it fails to state why the dismissal was fair. As an issue before the Tribunal was whether there had been a dismissal it cannot be assumed there is an implicit finding in the decision that there was a dismissal and there was submission that the Tribunal have erred in law if it found there had not been a dismissal.

Mr Pullen further submitted that the Tribunal erred in law in that it made no finding or explicit finding as to the principal reason for dismissal as required by section 57(1) of the 1978 Act and there were further errors made because the Tribunal erred in law in so far as it failed to specify any of the facts and reasons on which it based its finding of no redundancy.

He reminded us that a Tribunal must give reasons for a finding of no redundancy. It is simply, he submitted, not enough to state "we do not find there was any redundancy". He submitted that on the pithy reasons, which we have read, it is not possible to tell whether the Tribunal have applied the right test or have considered it at all.

He further submitted that the Tribunal failed to consider the provisions of section 82(2)(b) of the 1978 Act, which deal with whether the requirement for employees to carry out work of a particular kind has ceased or diminished. He submitted that the Tribunal should have focused on the skills and knowledge required for both the job of a matron in a residential care home and a nursing home.

Mr Pullen also submitted that on the evidence before the Industrial Tribunal it was not clear whether the Appellant had in fact been given a proper job offer. He said that it was certainly clear that she had asked for written job offer, but that had not been provided. We have no notes of the evidence to allow us to know whether that was right or wrong. However, we are clear that the question of redundancy and the question of dismissal were not adequately treated.

We are satisfied that, on the material which had been placed before us, inadequate reasons have been given by the Industrial Tribunal and we are satisfied that the test required under section 57(3) of the 1978 Act was not properly considered, namely whether the Respondent acted reasonably in reorganising the Home and in not offering the Appellant the new job of Senior Care Assistant on reduced salary, and whether the Appellant acted reasonably in refusing the change in her terms and conditions, in so far as they were known to her, given the evidence that she was prepared to accept a role, save for the reduction, from £5 to £4.50 an hour in her monthly salary, a reduction of 10 per cent.

In the circumstances, we have to allow the appeal and send it back for re-hearing before a fresh Tribunal.