Appeal No.	EAT/1392/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 May 2001

Before
THE HONOURABLE MR JUSTICE CHARLES
MR D CHADWICK
MS G MILLS

MRS M M BRIGGS	APPELLANT

MR N S BHATTI	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS AMANDA NANHOO-ROBINSON
(Citizens Advice Bureau Representative)

MR JUSTICE CHARLES:	

1	This appeal comes before us by way of a preliminary hearing.  The appeal is against a decision of an Employment Tribunal sitting in Sheffield.

2	The reasons for the decision were sent to the parties on 20 September 2000.  The Chairman has confirmed to this Tribunal that the reasons before us are Extended Reasons.  The need for that confirmation arises from the contradictory passages at the beginning of the reasons.  Firstly there is a heading “Extended Reasons” but the first paragraph says “These reasons are given in summary form”.  However, the confirmation has been received from the Chairman and, in any event, we will direct that this appeal should proceed on the basis of the Extended Reasons as given.

3	The decision was that the Applicant, who is a Mrs Briggs, was not constructively dismissed and was not entitled to a redundancy payment.

4	The Employment Tribunal also dismissed a counter-claim by the employers.

5	The Respondents to the proceedings below was a Mr Bhatti.  The background appears from paragraph 5 of the Extended Reasons which shows that the Respondent became the owner of a nursing home which, until December 1999, had a dual registration.  In December 1999 the registration was changed.  The effect of that change was that, as a matter of law flowing from the changed registration, employees were not entitled to administer medicines and things like injections.

6	Mrs Briggs is a State Enrolled Nurse who, I think, is now an RGN.  In paragraph 7 of the Extended Reasons the Employment Tribunal resolved a dispute of fact between the parties in the following terms, when they said:

“We find that pre-24 December 1999, the applicant was carrying out nursing procedures, specifically inserting catheters, giving injections and giving pressure care (to alleviate bed sores).  However, we also find that this represented only a minor part of her duties overall for the respondent and that the remainder and, indeed, the majority of her work was providing general care duties albeit in such a way that she should be in charge of the home during a night shift.”

7	The conclusions as to whether or not there was a constructive dismissal and redundancy are contained in paragraphs 9 and 10 of the Extended Reasons.  

8	The grounds of appeal are commendably short in that they state positively there was a breach of contract, redundancy was a factor and then they go on to add further detail relating to the fact that Mrs Briggs was an SEN.  

9	Today we have had the benefit of a skeleton argument from a representative of Mrs Briggs from the Citizens Advice Bureau and oral submissions from that representative.

10	Our function today is to determine whether or not a reasonably arguable point of law is raised.  We are satisfied that it is both in respect of whether or not there was a constructive dismissal and thus whether the variation that the employer sought to impose amounted to a fundamental breach of contract.

11	It seems to us that even though, in percentage terms, the amount of the job previously being done that related to nursing procedures was minor, it is arguable that it was nonetheless significant and therefore that the change did amount to a fundamental breach.  Additionally, we accept the argument put to us today that there are issues of status involved which could also arguably lead to a conclusion that there was a fundamental breach of contract which Mrs Briggs was entitled to accept.

12	For essentially the same reasons we consider it to be reasonably arguable that a redundancy situation existed.  

13	We will therefore give permission for this appeal to proceed on those bases which, in our view, are subsumed in the succinct Notice of Appeal.

14	We raised with the Appellant’s representative whether or not there was to be a challenge to the findings of fact, in particular that in paragraph 7 but there are other potential challenges.  The only basis upon which such a challenge could be advanced would be that there was no evidence to support the findings or that they were perverse and it seems to us that the representative of Mrs Briggs was correct to accept that she would struggle to assert either of those points. So in those circumstances there is no need for Chairman’s Notes.

15	We give permission for the appeal to proceed on the bases I have described, giving it Category C and a time estimate of half a day.