United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C GRAHAM (Solicitor) Messrs Ford & Warren Westgate Point Westgate Leeds DS1 2AX
For the Respondents	MR M WALKER (of Counsel) Messrs Greaves Atter Beaumont 67 Wesgate Wakefield WF1 1BP


 


MR JUSTICE LINDSAY: We have before us an appeal and a cross appeal in the matter Hodgson, Walker, Cunnane, Donohoe and Padden against Wakefield & Pontefract Community Health. Those five names are the names of five ladies who were employed by the Wakefield and Pontefract Community Health and they brought proceedings before the Industrial Tribunal that were heard on two days in January 1996 and their application led to a decision of the Industrial Tribunal of 21 March 1996 and the position before us is that Wakefield and Pontefract Community Health, who were represented before us by Mr Graham, appeal against the decision of the Industrial Tribunal.

The unanimous decision of the Industrial Tribunal was that all the five ladies were constructively dismissed. The question of compensation was adjourned to a later date unless, of course, the parties were to reach agreement in the meantime.

It is necessary to say a little about the nature of the employment of these five ladies. Each of them was either a full-time or part-time nurse or nursing assistant employed at premises, run by the Wakefield & Pontefract Community Health, known as Stanley Royd Hospital. Only a short distance away from the Stanley Royd Hospital, separated, as we understand it, only by a roadway, was another hospital, also run by the same Community Health organization, called Fieldhead. The nature of the work done at the two places differed, at any rate, so far as concerned these ladies, in the sense that at Stanley Royd they did psychiatric nursing, whereas at Fieldhead, the nature of the work generally done, so far as relevant for immediate purposes, was in relation to the care of persons described as sub-normal and we shall have to come on to describe the difference in the character of the work.

Wakefield and Pontefract wished to diminish the work at Stanley Royd, at all events, so far as concerned night shift working. All these five Applicants were concerned and concerned only, in the night shifts. Wakefield began to develop a plan in which Stanley Royd would be closed down, so far as concerned the work that the five ladies had been doing and that, in time, - and one has to emphasize that the period was uncertain over which the change would take place - but in time work would be taken up at another institution, to be called Third CUE, CUE referring to care of the elderly. That would be work which was more akin to the work that the ladies had been doing at Stanley Royd.

The timetable of offers and the development of proposals is gone into in some detail by the Industrial Tribunal but the Industrial Tribunal held that there was a requirement put upon these ladies that they should cease to work nightshift at Stanley Royd and should, at any rate for a time, work nightshift at Fieldhead and at paragraph 12 of the extended reasons of the Industrial Tribunal the Industrial Tribunal held as follows, namely, that the Applicants felt unable to continue work at the Fieldhead Hospital, they gave it a very short try but did not care for it, and the Respondents had not altered their decision to remove the Applicants to Fieldhead Hospital, despite protestations and that, therefore, on 8 August 1995 the ladies submitted notices of termination of employment to the Respondents.

The case, as it was put below, so far as concerns the appeal, was that Wakefield had been responsible for fundamental breaches of contract, that the ladies accepted that fundamental breach by giving in their notices of termination and that that represented constructive dismissal.

The principal issues before the Industrial Tribunal concerned different types of possible fundamental breach. One type of fundamental breach that was gone into at some length in the extended reasons and before the Industrial Tribunal was a change in requirement in that the ladies were to be required not only to work nightshift but, to some extent, to switch to some daytime working. The alternative, or second type of fundamental breach that was investigated below, dealt with the different nature of the work as between the work that had been done at Stanley Royd and the work that was now being required to be done at Fieldhead. Of course, it is no necessary part of an employee's case, where fundamental breach is asserted, that more than one fundamental breach should be asserted and, for our purposes, as Mr Graham well recognizes, if he is to fail on one kind of fundamental breach, that suffices to represent a failure. He has successfully to defend all kinds of alleged fundamental breach if he is to succeed on appeal. We therefore look in the first place simply at the fundamental breach alleged to consist of requiring the ladies to work at Fieldhead and thereby to engage upon a quite different kind of work than the work for which they had contracted. If that ground succeeds, then we need not look into the alternative as to hours of working in shifts.

Looking, therefore, at that particular ground, the different nature of the work, we first have to remind ourselves what the position is on law and, as to that, we have been referred by Mr Walker for the five Applicant ladies, to Pedersen v Camden London Borough Council [1981] ICR 674 where at page 678 in the judgment of Lawton LJ in the Court of Appeal he makes it clear that the first question is what is the contract, which is a question of law. Second, there is a question of whether there was a breach and then the question arises of whether the breach is fundamental and as to that last part, what Lawton LJ says is this at page 678 C:

"If there was evidence that there was a breach of contract which could have been of a fundamental kind, neither the Employment Appeal Tribunal nor this court is entitled to substitute its own view as to whether it amounted to a fundamental breach."

In other words, the fundamentality, so to speak, of the breach, is very much a question for the Industrial Tribunal - the industrial jury, as it is sometimes called. That is the necessary background of law.

The Industrial Tribunal heard evidence from Mrs Wilson, a former branch secretary of COHSE, and she told the Tribunal that at the time in question there were three divisions of nursing: firstly, psychiatric; secondly, general and thirdly, subnormality nursing. She gave evidence that a nurse's contract would specifically say whether that nurse was engaged for the psychiatric work or, for example, do that referentially by saying "at Stanley Royd", which was a base for psychiatric nursing. Equally, if a nurse was to be expected to do subnormal work, her contract would so specify. Mrs Wilson gave evidence that each of the nurse's contracts was such that she was contracted only to work in the psychiatric branch of nursing and Mrs Wilson also indicated that ordinary practise was that a nurse would not be capable of being moved from one type of work to another without her consent and that that principle had long been accepted, both by the unions engaged and by health authorities.

We have here a position in which contractually each of the five ladies was contracted only to do work of the psychiatric nature and could expect not to be required to do, for example, subnormal nursing without consent. So much for the contract.

Was there a breach of contract? In paragraph 8 of the extended reasons for the Industrial Tribunal there is a record of the instruction given to the ladies that they should commence work at the Fieldhead Hospital, the Fieldhead Hospital being not an institution at which psychiatric nursing was taking place but at which subnormal nursing was taking place. Mr Robinson gave evidence to the Industrial Tribunal. He was a former Whitley Council member with mental nursing experience. His final appointment was nurse manager with the Wigan Health Authority and he had been a senior health officer for the Regional Health Office and he was familiar both with Stanley Royd and the Fieldhead Hospital. He gave evidence as to the different nature of the work done at Stanley Royd on the one hand and at Fieldhead on the other. He said that there was a big cultural difference between those patients suffering from learning difficulties from incomplete mental development, having been born, for instance, with Down's syndrome and those patients who were dealt with at Stanley Royd.

The Industrial Tribunal summarized his evidence as follows, looking at paragraph 28 of their extended reasons:

"In summary Mr Robinson's evidence was that the difference in work or more importantly the difference in the patients between those at Stanley Royd and Fieldhead was very considerable because the patients at Fieldhead were suffering from learning difficulties and many in other fields of nursing would find it difficult to cope physically with patients suffering from learning difficulties and not all psychiatric nurses such as these applicants would have the aptitude for dealing with patients suffering from learning difficulties ..."

The summary of Mr Robinson's evidence was that there were very considerable differences between the nature of the work and the patients at the one hospital and at the other and that, accordingly, the Industrial Tribunal held in paragraph 29 as follows:

"On the evidence of Mr Robinson and Mrs Wilson the majority of the tribunal find that there was a breach of contract in requiring these 5 applicants to transfer to Fieldhead Hospital."

A little later they find that it was a fundamental breach to require them to do the Fieldhead type of work.

That strays into the next question, that having been contracted to do only psychiatric work and there being a breach of that contract, whether it is fundamental or not and that, as the Pedersen case shows, is essentially a matter of fact. The Industrial Tribunal directed itself by reference to the leading case on the area, Western Excavating Ltd v Sharp [1978] ICR 221. They refer to that in their very first paragraph and, as I have already referred to, Mr Robinson's evidence was that the difference in the character of the two works was very considerable and hence the majority held that there had been a fundamental breach in the passage that I have just referred to.

Mr Graham addresses us with the great handicap that we are, of course, concerned only with errors of law and, moreover, although of course it is an error of law for a Tribunal to come to a conclusion in respect of which there was no evidence in support, the evidence here of Mrs Wilson and Mr Robinson was supplemented by the evidence of the five ladies. There was not other evidence but that and we do not have the Chairman's notes. They have not been sought nor, of course, provided. Mr Graham labours under considerable difficulty when he seeks to assert that there is some error of law in this part of the reasoning and, indeed, it is difficult to spot any such error. Although this point has not been developed before us, it would be as well to indicate that the change from working at Stanley Royd to working at Fieldhead cannot be described as temporary in any sense that is acceptable in employment law because although, ultimately, the ladies were intended to be invited to work at 3 CUE, no one knew then and, indeed, no one knows even now, it seems, as to when 3 CUE will be built and open for operations and in a position to take on employees and there is clear law on the subject. I am thinking of Millbrook Furnishing before Mr Justice Browne-Wilkinson and the Members with him, that if, as a matter of temporary exigency, some changes are to be forced upon employees, then it has to be only for a truly temporary period, either a short fixed period or some period which is, of its nature, limited in duration and here it is difficult to see the time until 3 CUE is able to take on employees, as being merely a temporary change of any such character.

Mr Graham, who has addressed us very helpfully on behalf of the Wakefield and Pontefract Community Health, seeks to say that at all events the causal link that is necessary between the fundamental breach and the ladies' handing in of notices on account of the fundamental breach, is not sufficiently clear in this case, but at paragraph 12 of the extended reasons, the Industrial Tribunal did hold, as I have previously read that:

"The respondents had not altered their decision to remove the applicants to Fieldhead Hospital despite their protestations and therefore on 8 August 1995 they submitted their notices of termination of employment to the respondents."

That seems to us to be a sufficient explicit finding of the causal link between the decision to require the ladies to do the Fieldhead kind of work and the giving in of their notices of termination.

Accordingly, looking simply at this separate ground of alleged fundamental breach, we find that the Tribunal was guilty of no error of law in coming to the conclusion at which it arrived, namely, that there was a fundamental breach that gave rise to constructive dismissal in the case of all five Applicants. It therefore becomes unnecessary for us to investigate the alternative area upon which Mr Graham has quite properly addressed us, namely, in relation to changes in shift working and hours and so on. We say nothing as to that. We neither identify any error of law nor do we say that there is no error of law. We simply do not need to investigate that aspect of the case. Accordingly, one fundamental breach sufficing, we find that there is no error of law that has been identified to us and we dismiss the appeal.