Appeal No.	 EAT/416/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 December 1997

Before
HIS HONOUR JUDGE B HARGROVE QC
MR P DAWSON OBE
MR R H PHIPPS

MRS J NOSURAK	APPELLANT

KINGS HEAD COMPLEX	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P D GARTON
(Representative)
Instructed by:
Ms J Maw
Citizens Advice Bureau
Bennet House
Horsemarket
Darlington
DL1 5PT	
For the Respondents	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS	

	JUDGE HARGROVE QC:     The appellant was a State Enrolled Nurse employed by the respondents at a Nursing Home. She normally did night duty. The home was inspected by the Nursing Homes Registration Unit Inspector. In 1993 various standards and specifications for Nursing Homes had come into force. One of those requirements was that a First Grade Nurse must be on duty at all times. The appellant had not got such a qualification. The appellant was on duty at night and alone. 

	There was an attempt by the respondents to encourage the appellant to upgrade her qualifications. She refused and this was repeated on another occasion. The respondents did the best they could to retain the status quo, but eventually on 6th March 1996 there was an official demand that the position should be rectified. The matter was raised again with the appellant and she said that she could not say that she had not been given plenty of warning. 

	On 3rd February she was told that she could not be employed on night duty but the day duty would be available to her at the same rate of pay and the same number of hours. The appellant refused and at that stage claimed she had been redundant.

	It was held by the Industrial Tribunal that the ground for dismissal was that related to contravention of a duty or a restriction imposed under an enactment. The tribunal then turned to the question of reasonableness. What they held was this:

“8	For someone with the background of the applicant of reluctance to pursue her education progress we considered that a reasonable employer would have done more to spell out the need for her to become qualified as a first level nurse as a requirement of the job that she was doing. We felt that more help should have been given in finding a suitable course for conversion and in providing a timetable to achieve qualification making it clear that if not achieved she would lose that position. Having said that although loss of the night shift work might have been inconvenient to the applicant she was offered day work on the same rate of pay and the same hours so that there is no loss of income and indeed no loss. Further she must in our view shoulder a heavy burden of responsibility for her own lethargy in failing to pursue her own personal development as a professional person.
9	In conclusion we felt that a reasonable employer acting reasonably would have done more to encourage the applicant, to investigate the appropriate conversion course and if the applicant continued to maintain her flat refusal to do any such thing would have spelled out a definite timetable  by which it was expected that she would become so qualified or lose her job. Miss Ash was clearly a person with a strong interest in educational matters herself and appeared to have difficulty in understanding someone who did not share that enthusiasm and did not seem to know how to deal with that situation. Having regard to all this we feel that whereas we find that the dismissal was unfair because a reasonable employer would have done more to spell out the situation we nevertheless feel that it would not be appropriate to award compensation as it would not be just and equitable to do so.”

	It is said that the tribunal failed to give sufficient reason for its findings that she contributed  to her dismissal and that there was no such evidence of contribution. Bearing in mind that she had been given repeated chances to improve her qualifications, she had been warned on a number of occasions that she had not got the necessary qualifications and had repeatedly declined to rectify the position, and when offered alternative and no less remunerative work at the same place for the same money, she elected to put her personal preferences for night work before her employment, there was ample evidence before the tribunal to reach their conclusions.

	The basis upon which they have apparently operated is s.123(6) of the Employment Rights Act 1996 which reads:

	“(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”

	It is true that there is no specific finding in words or figures that the appellant was 100% to blame, but there can be no other inference to be drawn from what is said. Once when one reaches that position, the question of what is just and equitable having regard to the matters they have found, is one which the tribunal was entitled to make and in our view did make properly utilising all the matters before it to draw the inference that they did. Accordingly, there was no error of fact or law and this appeal is dismissed.