Appeal No.	 EAT/994/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 March 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR A C BLYGHTON
MR R H PHIPPS

MRS J HARROWER	APPELLANT

BUCKINGHAMSHIRE HEALTH AUTHORITY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR M REUBEN
(Consultant)
Management & Technical Resources
Midland House
22 Midland Road
Olney
Bucks MK46 4BL	
For the Respondents	MISS S ASHTIANI 
(Solicitor)
Messrs Cole & Cole
Solicitors
Buxton Court
3 West Way
Oxford OX2 OSZ	

	JUDGE PETER CLARK:     From 3 August 1992 until her dismissal with effect from 26 January 1996, the Appellant was employed by the Respondent, or its predecessors, in the post of Registration and Inspection Manager of Nursing Homes.  The Respondent was required to have in place such a position under the Registered Homes Act 1984.  Although the post-holder need not be a qualified nurse under the Act, and the Appellant was not, it was necessary that suitable nursing advice was available to the Respondent.

	Until August 1995 nursing advice was available from nurses employed by the Respondent.  However, by that time those nurses had left and as a temporary measure nursing advice was “bought in”.  

	In autumn 1995 the Respondent commissioned a review of the registration function from Mr Brearley, a qualified nurse.  In December he produced his report which recommended two possible options; the first was that the registration unit be headed by a person unqualified as a nurse, with one and a half whole-time equivalent nurses also employed.  The second was that the unit be headed by a qualified nurse with a low level of nurse involvement below.  Each option involved a degree of administrative and clerical support.  Each option was costed at about £75,000 per annum, some £24,000 per annum above current costs.  The Respondent set up a working party to consider that review and make recommendations to a board meeting to be held in January 1996.  

	On 18 December 1995 Mrs Baird, the Respondent’s Business and Strategy Manager met with the Appellant and discussed Mr Brearley’s report with her.  This was because one of the options involved deletion of her post.  Mrs Baird raised the possibility of the Appellant considering one of the lower grade administration posts in that event.  The Appellant, so the Tribunal found, was upset and made it quite clear that she would not accept a junior position.

	The Appellant was invited to submit any representations on the report, which she may have, and she did so in a document dated 3 January 1996, critical of Mr Brearley’s approach.  Unsurprisingly, she went for the first option which would preserve her position.

	The working party recommended the second option, involving the appointment of a qualified Grade 1 nurse to be appointed as full-time Registration Officer.  If adopted by the Board, that would mean that the Appellant could not continue in post due to her lack of a nursing qualification.  That recommendation was, in due course, accepted by the Board at their meeting held on 23 January 1996.

	Following the Board meeting Mrs Baird and Mrs Hands of Personnel resolved to inform the Appellant of the Board’s decision.  First they looked for alternative employment for the Appellant.  There was a post in the Finance Department for which she was not qualified; in the light of her stated position in December, that she would not consider a junior post, they concluded that no suitable alternative employment was available for her.

	The Appellant was seen on 23 January and told of the position.  She was naturally distressed.  It was agreed that she would cease her duties and leave the employment with effect from 26 January.  

	On 25 January the Trade Union UNISON, of which the Appellant was by then, unbeknown to the Respondent, a member, gave notice of appeal on her behalf.  The appeal took place before a panel of three members on 12 April 1996.  The appeal was dismissed.

`	She then presented a complaint of unfair dismissal on 19 April 1996.  That complaint was heard by an Industrial Tribunal sitting at Reading on 3 - 4 March 1997.  Having found the facts as summarised above the Tribunal reached the following conclusions:

(1)  Reason for Dismissal

In their Notice of Appearance the Respondent relied upon redundancy, alternatively some other substantial reason as the reason for dismissal.  For the Appellant, it was argued that there was no redundancy situation; the post of Registration Officer remained after the Appellant’s dismissal.  The alteration in the specification for the post did not alter that fact.  There was no diminution in the requirement for employees to do work of a particular kind, performed by the Appellant.

The Tribunal found that the reason was redundancy.  By reference to the Court of Appeal decision in Murphy v Epsom College [1985] ICR 80 they directed themselves that the question arising where there was a change in job specification, was whether the job remained essentially the same or whether such changes rendered the job fundamentally different.  Having considered the change here, that is the new requirement of a nursing qualification, they concluded that a redundancy situation did exist and that was the reason for dismissal.

(2)  Reasonableness

(a)  Consultation:  The Tribunal found that adequate consultation had taken place with the Appellant herself; they did not criticise the Respondent for not consulting also with the union prior to dismissal in circumstances where the Respondent was unaware of her membership and the Appellant had not drawn it to the Respondent’s notice.

(b)  Alternative employment:  At the internal appeal hearing it had been suggested on the Appellant’s behalf that she ought to have been encouraged to apply for one of the junior administration posts which existed following the reorganisation.  However, the Tribunal accepted the Respondent’s case that in the light of the Appellant’s settled intention, expressed in December 1995, that she would not consider a junior post, it was reasonable not to re-visit that possibility in January 1996 immediately prior to dismissal.

	In these circumstances the Tribunal found the dismissal to be fair.

	In this appeal Mr Reuben, on behalf of the Appellant, takes three points.

	The first is an attack on the Tribunal’s finding that the reason for dismissal was redundancy.  He submits that the post of Registration Officer continued after the Appellant’s dismissal; the only difference was that the Respondent appointed a qualified nurse to the post, a qualification not required under the provisions of the Registered Homes Act 1984.  He contended that the Court of Appeal decision in Murphy was distinguishable on the facts.

	For the Respondent Miss Ashtiani submits that the Tribunal were well aware of the distinction between changes in job function where the job remains essentially the same, and those where the job becomes fundamentally different, when deciding whether, on the facts, there was a diminution in the employer’s requirement for employees to carry out work of a particular kind within the meaning of Section 139(1)(b)(i) of the Employment Rights Act 1996.  They found that the employer’s additional requirement of a nursing qualification for the post of registration officer brought the case within the second category.  That was a permissible finding.

	We prefer the submission of Miss Ashtiani.  In Safeway Stores Plc v Burrell [1997] IRLR 200, this Appeal Tribunal was not principally concerned with the statutory expression “work of a particular kind”.  The point arises directly for consideration in the instance case, and we shall follow the approach of the Court of Appeal in Murphy, to which reference was made in paragraph 71 of the judgment in Burrell, and the earlier judgment of Sir John Donaldson in Amos v Max Arc Ltd [1973] ICR 46, and the cases there cited at 48 E - H.

	In our judgment there is no error of law made out in this Tribunal’s finding that the reason for dismissal, on the facts as found, was redundancy.  

	Mr Reuben’s next point was only faintly argued.  It was that the Tribunal erred in failing to characterise the dismissal as unfair because the Respondent did not itself, prior to the dismissal, consult with the Trade Union when they were unaware that the Appellant had become a member.  We can see nothing in that submission on appeal.  The Trade Union represented the Appellant at the internal appeal hearing.  There is no error of law here made out.

	Finally he takes a point on alternative employment.  The two junior administration posts which the Appellant firmly rejected on 18 December 1995 ought, he submits, to have been re-offered to her on 23 January 1996.  They had in fact been filled by the time of the appeal held on 12 April 1996.  Again, we accept Miss Ashtiani’s submission that the Tribunal’s finding that the Respondent’s approach to alternative employment on the facts fell within the range of reasonable responses was a permissible option.

	In these circumstances we, having rejected each of Mr Reuben’s grounds of appeal, must dismiss this appeal.