United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS L FINDLAY Legal Officer Royal College of Nursing


 


JUDGE COLLINS:

1. This is the preliminary hearing of an appeal against the decision of an employment tribunal sitting at Exeter whose extended reasons were promulgated on 13 December 1999. By their decision the tribunal dismissed all the appellant's applications which were then before them in relation to unfair dismissal, redundancy, discrimination on sex and race grounds and victimisation because of trade union activities. They also ordered him to pay £500 towards the costs of the first respondent on the ground that his applications were frivolous.
2. The essential facts, so far as it is necessary to relate them are that the appellant is now 41 years old, having been employed by the respondent hospital trust from 6 August 1989 until 30 March 1999, initially as a nurse and from 17 July 1995 as one of two full time night services mangers. In the summer of 1998 the trust decided to reorganise so as to abolish the two posts of night services manager and have a system of general internal rotation. The appellant was notified of that decision in August and on 19 October he was told that it would come into force on 1 April of the following year. There followed substantial negotiations about the alternative employment that might be offered him during the course of which he was represented by his union. The two sticking points appear to have been first, whether what was being offered him was of equivalent status to what he then enjoyed and second, whether arrangements could be made to comply with his wish that he should work at night whenever possible, so as to enable him to dovetail domestic child care arrangements with the working or studying hours of his wife.
3. Those negotiations failed and the appellant eventually succeeded in obtaining alternative employment with the Torbay trust near where he lives. He commenced these proceedings by an originating application dated 25 June 1999. The appellant does not now proceed in relation to the redundancy claim because of the special provisions relating to transfer of employment within the National Health Service.
4. So far as the unfair dismissal claim is concerned the appellant has two principal points - first, it is pointed out that the tribunal held in paragraph 20 of their reasons that he was dismissed by reason of redundancy but the dismissal was fair in all the circumstances, and it is argued that they should have held that the dismissal was unfair because of the employers' failure to involve him in the initial consultations relating to the reorganisation. It is clear that the decision to reorganise was taken at managerial level without consultation with the senior members of staff who were most closely affected, that is the two night managers. When Mr Franc attempted to mount an argument as to why the reorganisation was not appropriate he was curtly rebuffed in correspondence. He was told that the decision had already been taken and his views were not welcome. It seems to us reasonably arguable that the whole procedure was unfair for that reason.
5. The second point on which it is argued that the tribunal should have held the dismissal unfair relates to the offer of alternative employment. In our judgment it is reasonably arguable that the alternative employment offered was not suitable either on status grounds or because of its suitability for his child care commitments.
6. The application in relation to discrimination on the ground of race is not proceeded with nor is the generalised complaint that the appellant was discriminated against on the grounds of sex. However, the complaint that he was unlawfully discriminated against as a married person under s.3 of the Sex Discrimination Act 1975 is. The way that he put it in his originating application was to say that the employers failed to pay sufficient regard to his childcare responsibilities and that the effect of such a change in his working patterns was such that the proportion of married men who could comply was considerably smaller than the proportion of unmarried men who could comply. He argues that he could not comply, although the evidential basis for that has to be said to be somewhat unclear.
7. The tribunal dealt with this in paragraph 19:

'' There is also a reference to marital discrimination based on S.3 of the Sex Discrimination Act 1975. This appears to be based on childcare also. While it may be arguable for single parents we cannot understand how it can be advanced for married people of either sex living with a spouse and those are the applicant's circumstances. We dismiss that claim.''

8. It does seem to us that there is considerable force in Ms Findlay's argument that the tribunal simply failed to understand the case which was being put forward, or give it serious consideration. We think that she should have an opportunity of arguing this matter at a full hearing.
9. The final matter is the question of costs. It follows that if any of the principal grounds of appeal succeed, the order for costs is likely to fall. In any event since the matter is proceeding we think that the appellant should have an opportunity of arguing the question of costs, whether or not any of the other arguments succeed.