United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J SMITH (Solicitor) Messrs Higgs & Sons Solicitors Inhedge House 31 Wolverhampton Street Dudley West Midlands DY1 1EY


 


JUDGE PETER CLARK: The issue in this case before the Birmingham Industrial Tribunal was, first, what was the reason for dismissal? The employee contended that it was redundancy, the employer relied on some other substantial reason, namely a business reorganisation.

The applicant was employed as a staff nurse under a contract of employment which provided that she was to work part-time two nights per week, ten hours per shift.

As a result of a reorganisation, the respondent employer introduced flexible shift working. The new system meant that it was essential that staff nurses worked days as well as nights. Daytime work did not fit with the applicant's domestic and other part-time work commitments.

The Industrial Tribunal found that the reason for dismissal was redundancy on the basis that the requirements of the business for employees to carry out the work of night nurse had ceased.

We think that the respondent's appeal against that finding raises an arguable point of law. The Industrial Tribunal relied upon the so-called contract test; see now Safeway v Burrell [1997] IRLR 200 and High Table v Horst [1997] IRLR 513. Further, the question is whether there was a diminution in the requirement of the number of employees to do work of a particular kind; rescheduling shifts may not result in a dismissal by reason of redundancy. Johnson v Nottinghamshire Combined Police Authority [1974] ICR 170.

In these circumstances we shall allow this appeal to proceed to a full hearing. It will be listed for half a day, and the parties should exchange skeleton arguments and lodge copies with the Employment Appeal Tribunal not less than 14 days before the date fixed for hearing.