THE HONOURABLE MR JUSTICE KEITH
Introduction
1.
The Claimant, Ms Lesley Bird, was employed by the Respondent, the
Stoke-on-Trent Primary Care Trust (“the Trust”), in a role with both managerial
and clinical responsibilities. She was dismissed for redundancy on 30 November
2007. The Trust declined to pay her a redundancy payment because prior to her
redundancy she had refused – unreasonably so the Trust claimed – offers of
alternative employment which the Trust claimed were suitable for her. She
presented a claim for a redundancy payment to the Employment Tribunal, but
following a hearing over three days at an Employment Tribunal in Birmingham, her claim for a redundancy payment was dismissed. She now appeals against the
dismissal of her claim.
The facts
2.
Ms Bird’s employment was originally with the North Stoke Primary Care
Trust. It began on 2 August 2004. She is a physiotherapist by profession, and
her job title was Clinical Lead Therapy Musculoskeletal Services. She was
based at Haywood Hospital. The post involved the management of a team of some
25 or so physiotherapists and occupational therapists, and the breakdown of her
management and clinical responsibilities were such that for 80% of her time she
had a management role and only 20% of her time was devoted to clinical care.
Although the post was essentially a managerial one, the advertisement for the
post had said that the successful candidate would “have career aspirations to
be a Physiotherapist Consultant”, and the role would provide “leadership,
operational research and development and teaching opportunities … to allow you
to realise your ambition”. In the grading system which was then in place, the
post was a Superintendent 1 post. Ms Bird reported to the Head of Therapy
Services, though the following year after the departure of the Head of Therapy
Services, Ms Bird reported to the Hospital Manager.
3.
These facts come from the Tribunal’s reasons, but what the Tribunal did
not refer to were the strategic and regional responsibilities Ms Bird had. The
job description of the post said that her responsibilities included ensuring
that the physiotherapists and occupational therapists she managed played an
active role in the provision of therapy services in the area, and assisting in
the development of working methods to support the modernisation of
musculoskeletal services both at the hospital she worked at and throughout Stoke-on-Trent. Mr Andrew McGrath for Ms Bird said that those responsibilities emphasised
the high status of the post, but whether they really added anything of
significance we cannot say.
4.
In late 2004 and early 2005, a substantial reorganisation took place
within the National Health Service. It was called Agenda for Change, and it
resulted in a new framework for terms and conditions of staff and the
introduction of a new grading system. Ms Bird’s post was assessed at grade 7
under the new grading system. She appealed against the grading of her post,
but her appeal was unsuccessful.
5.
In 2006, the North Stoke Primary Care Trust merged with the South Stoke
Primary Care Trust. The merged body was the Stoke-on-Trent Primary Care Trust,
and it became Ms Bird’s employer. The merger resulted in a restructuring of
all managerial positions within the Trust. A number of new posts were created,
and a number of existing posts would disappear. If staff whose posts were at
risk of disestablishment could show that a new post was substantially the same
as their existing one, they were entitled to transfer to it. Otherwise, staff
whose posts were at risk of disestablishment could apply for whatever posts
were available. Those who were unsuccessful in that process were guaranteed a
period of employment, but if no suitable post could be secured for them, they
would eventually be made redundant.
6.
Ms Bird’s post was identified as one of the posts at risk of
disestablishment. She did not apply for any of the posts which were then
available because they were exclusively managerial posts and had no
clinical element. She decided to wait for a post to become available with “the
right mix of clinical and management content”. Her aim when she had joined the
North Stoke Primary Care Trust had been to become a consultant physiotherapist,
and the Tribunal found that someone could realise that ambition from a variety
of career paths, including one in which their latest post was a purely
managerial one. Ms Bird’s post-graduate degree was an MBA rather than a
clinical one, and that had not prevented her from securing a post which had
been identified as suitable for someone who aspired to be a consultant
physiotherapist. The Tribunal acknowledged that a consultant was required to
be registered as a clinical practitioner, but it was possible for someone in a
purely managerial post to satisfy the requirements of their professional body
for the retention of their registration.
7.
Since Ms Bird did not apply for any of the posts which were available,
it was up to the Trust to offer her such posts as it thought might be suitable
for her. The Trust’s view was that clinical posts could be suitable
alternatives for those whose existing posts had had both clinical and
managerial elements. Indeed, its view was that many clinical posts included
managerial elements. It was against that background that on 26 March 2007 the
Trust offered three posts to Ms Bird, all of which were at grade 7. One was
that of physiotherapist at Haywood Hospital. We imagine, though we cannot be
sure, that that was a purely clinical role, but the other two posts (whose job
titles were Physiotherapy Clinical Specialist and Senior 1 Physiotherapist) had
either managerial or clinical leadership elements to them.
8.
The job descriptions for each of these two posts were lengthy
documents. The post holders in each case would be accountable to the Manager
of Therapy Services and would report to the Trust’s Superintendent Physiotherapist.
Each of the job descriptions contained, amongst other things, a job summary and
a list of the key responsibilities of the post. The job summary for the post
of Physiotherapy Clinical Specialist (which to confuse matters was also called
Clinical Specialist Musculoskeletal/Physio Direct Community) read:
“1) To lead, support and co-ordinate the ongoing development of
Physiotherapy Direct Service utilising highly specialised skills and knowledge
within the post holder’s area of expertise.
2) To assist, diagnose, problem solve review and discharge
patients using highly specialised clinical expertise. This post includes a
minimum of 80% highly skilled and specialist clinical and requires post holder
to adapt to unpredictable changes and demands on the service.”
Amongst the key
responsibilities of the post was to
“… act as the Physiotherapy Service clinical community
specialist adviser in post holder’s area of clinical expertise providing verbal
and written support to a wide range of staff with the Physiotherapy Service as
well as staff from other professions within the Health Service. This may
include one to one advice or informal or formal teaching to individuals or
groups”.
The job description did not state where the post holder would be
based, but the Tribunal found that he or she would be based at Bentilee, which
we assume was the site of a local hospital.
9.
The job summary for the post of Senior 1 Physiotherapist read:
“1) In conjunction with the Superintendent Physiotherapist,
provide strong, visible professional and clinical leadership to the
Physiotherapy team managed by the post holder within the community
Physiotherapy Service of Stoke on Trent PCT.
2) Operationally responsible as the clinic and professional lead
for the provision of Physiotherapy within the post holders team. This post
includes a minimum of 85% highly skilled clinical work and requires post holder
to adapt to unpredictable changes and demands on the service. Specialising in
domiciliary work and musculoskeletal outpatients in the primary care settings,
the post holder may also be required to work on the Physiotherapy Direct
Service.”
The job description stated that the post holder would be based at
Longton Cottage Hospital, which the Tribunal found was closer to Sheffield
where Ms Bird lived than Haywood Hospital.
10.
Ms Bird informed the Trust that none of these posts were suitable.
Initially she did not say why, but on 25 April 2007 she gave the Trust her
reasons for thinking that. The Trust accepted that the post of physiotherapist
was not suitable, not least because Ms Bird would have been working in a
clinical setting alongside colleagues for whom she had previously been
responsible. As for the other two posts, the Tribunal found that Ms Bird had
told the Trust that the post of Physiotherapy Clinical Specialist might be
acceptable if training and development (we are not quite sure what the latter
meant) were available to enable her to achieve the level of skills and
competencies required, but that she did not believe that the necessary skills
and competencies required for the post of Senior 1 Physiotherapist could be
acquired by her with training in an acceptable timescale.
11.
We are a little troubled by that finding. It suggests that Ms Bird was
saying that the posts were unsuitable only because she did not then have the
skills required for them. That does not sit comfortably with what Mr McGrath
(who represented Ms Bird at the hearing in the Tribunal as well) told us had
been the nub of her case. That was (a) that she could have done both jobs
“falling off a log”, and (b) that if she accepted either of these posts, she
would be moving from managing a team of physiotherapists and occupational
therapists to being managed within a team. She could no longer say that she
was a manager within the National Health Service. That was neither accepted
nor disputed by Mr Tim Sheppard who represented the Trust on the hearing of the
appeal, though it is fair to say that he did not represent the Trust at the
hearing in the Tribunal, and we do not think that there was a representative of
the Trust at the hearing of the appeal from whom Mr Sheppard could obtain
instructions. In the circumstances, we have to proceed on the basis that what
Mr McGrath told us was accurate. Interestingly, what Mr McGrath says her case
was is supported, in part at any rate, by the Tribunal noting that in her
evidence to the Tribunal Ms Bird had said that it had in fact always been her
view that, given suitable training, both posts were comfortably within
her professional competence.
12.
On 30 April 2007, Ms Bird commenced a period of sickness leave. She had
a stress-related illness. She was never to return to work. Her illness may
have had something to do with a grievance which had been raised against her by
members of the physiotherapy team at Haywood Hospital about her management
style which was described as bullying. In January 2007, Ms Bird herself made a
complaint of unprofessional behaviour about one of her colleagues, and the
Trust decided that both the grievance against her and her complaint should be
investigated together.
13.
While she was on sick leave, Ms Bird had a meeting with Mrs Helen Duffy
about the posts she had been offered. Mrs Duffy was the Trust’s County
Hospitals Manager at the time of the hearing in July 2010, though whether that
was her post in 2007, we do not know. Ms Bird was concerned about the status
of the posts, and pointed out that she would have to report to people who had
been in posts with lower grades than hers under the old grading system. Mrs
Duffy said that the old grading system no longer applied, and that the posts
which Ms Bird had been offered were at the grade of her current post under the
new grading system and matched Ms Bird’s skills.
14.
Ms Bird’s union, UNISON, took up her case. Their representations on Ms
Bird’s behalf focused on the two posts which the Trust was still claiming were
suitable for her. They said that the skills and competencies required for the
post of Senior 1 Physiotherapist were not achievable by Ms Bird even with
training within an acceptable time scale, but in relation to both posts, the Tribunal
described the points UNISON had made as being “(1) lower status (2) different
balance of clinical and management responsibilities and (3) career setback”.
We understand (2) very clearly. Ms Bird’s existing post was principally a
managerial post (with only 20% of her time to be spent on clinical care),
whereas the two posts she was being offered were principally clinical posts
(with in one case 20% of her time, and in the other only 15% of her time, to be
spent on management).
15.
We are not quite sure what (1) was referring to. It could have been
that in the posts she was offered she would be accountable to staff at a lower
level than the Hospital Manager to whom she was reporting in her existing
post. It could have been that the holders of the posts to whom she would have
been accountable would have been in posts with lower grades than hers under the
old grading system. It could have been that she would be moving from managing
a team of physiotherapists and occupational therapists in a post in which she
could legitimately say that she was a manager within the National Health
Service to a post in which she was being managed within such a team. It may be
that a combination of all three was being referred to. But the upshot of it
was that she declined to accept either of the posts, and she was therefore
dismissed for redundancy.
16.
We should record that if Ms Bird had been entitled to a redundancy payment,
it would not have been limited to the statutory redundancy payment, which in
her case would have amounted to £7,750.00. She would also have been entitled
to the contractual redundancy payment available to National Health Service
staff as a result of changes to their terms and conditions effected by Agenda
for Change, unless she had “unreasonably refuse[d] to accept or apply for
suitable alternative employment with the same or another NHS employer”. The Tribunal
said that if she had been entitled to a contractual redundancy payment, it
would have been in the region of £70,000.00. That was not an unimportant
consideration because the Trust’s case was, to use the Tribunal’s own words in
para. 39.5 of its reasons,
“… that Ms Bird had become disaffected because of the various
changes which affected her, and especially her failure on appeal to secure the
re-banding of her post, and had determined to secure the very substantial cash
sum which could come to her upon redundancy. She therefore simply refused to
engage in the process of seeking alternative employment, and invented a series
of pretexts to avoid accepting posts which were suitable for her.”
The Tribunal’s
conclusion on the topic was this:
“We considered this submission with care. There is a good deal
of support for it in the evidence. However, Ms Bird strenuously denied it, and
we did not feel able to make it as a finding of fact. However, we concluded
that her approach to the process of consultation with [the Trust] was much
affected by her knowledge that such a large sum might be available to her.”
So whatever the Tribunal’s suspicions may have been, they should
have played no part in the Tribunal’s assessment of whether Ms Bird’s refusal
of the offers was reasonable since the recoupment of this sizeable sum was not
found to be the reason why she had refused the offers.
The legal framework
17.
In the light of sections 141(2) and 141(3)(b) of the Employment
Rights Act 1996, the questions for the Tribunal were whether the offers of
either of the two posts constituted offers of suitable employment for Ms Bird,
and whether her refusal of either of those offers was reasonable. Apart from
occasional cases which have suggested otherwise – of which the decision of the
Employment Appeal Tribunal in Scotland (Lord McDonald presiding) in Tocher
v General Motors Scotland Ltd [1981] IRLR 55 at [13] is one – the law
has always been that those two questions have to be considered separately: see,
for example, the decision of the Employment Appeal Tribunal (Wood J presiding)
in Knott v Southampton and South-West Hampshire Health Authority
[1991] ICR 480 at pp 485G-486B. But that does not mean that the two questions
are completely unrelated. The more suitable the offer, the easier it may be
for the employer to show that the employee’s refusal of the offer was
unreasonable: see the decision of the Employment Appeal Tribunal (Judge Peter
Clark presiding) in Commission for Healthcare Audit and Inspection v Ward
(UKEAT/0579/07/JOJ) at [18]. It was for the Trust to prove the suitability of
at least one of the posts for Ms Bird and the unreasonableness of her refusal
of it.
18.
Since the grounds of appeal criticise how the Employment Tribunal
approached both these questions, it is necessary to identify what the correct
approach to them is. The issue of suitability is conveniently (and correctly)
summarised in Harvey on Industrial Relations and Employment Law, Vol 1,
Division E, Issue 204, para. 1489, which reads:
“Under ‘suitability’ you must consider the nature of the employment
offered. It is for the tribunal to make an objective assessment of the job
offered (Carron Co v Robertson (1967) 2 ITR 484, Ct of Sess). It
is not, however, an entirely objective test, in that the question is not
whether the employment is suitable in relation to that sort of employee,
but whether it is suitable in relation to that particular employee. It
comes really to asking whether the job matches the person: does it suit his
skills, aptitudes and experience? The whole of the job must be considered, not
only the tasks to be performed, but the terms of employment, especially wages
and hours, and the responsibility and status involved. The location may also
be relevant, because ‘commuting is not generally regarded as a joy’ (Laing
v Thistle Hotels Plc [2003] SLT 37, Ct of Sess, per Lord
Ordinary Eassie). No single factor is decisive; all must be considered as a
package. Was it, in all the circumstances, a reasonable offer for that
employer to suggest that job to that employee? And the sole criterion by which
that is to be judged is ‘suitability’.”
There has been talk in some of the cases that the new post should
be “substantially” or “broadly” equivalent to the existing one (see, for
example, Lord Parker CJ in Taylor v Kent County Council [1969] 2
QB 560 at p 566B and Lord Eassie in Laing), but that was doubted
– correctly, we think – by Bridge J (as he then was) in Collier v Smith’s
Dock Co Ltd (1969) 4 ITR 338 on the basis that it puts an unwarranted
gloss on the statutory language. In other words, the fact that the post which
is being offered is different from the employee’s existing post does not
necessarily mean that it is unsuitable for that employee, but by analogy with
the approach in Ward, the more different the posts are, the more
difficult it may be for the employer to show that the post which is being
offered is suitable for the employee.
19.
The issue of reasonableness is also conveniently (and correctly)
summarised in Harvey, op. cit., para. 1552:
“The question is not whether a reasonable employee would have
accepted the employer’s offer, but whether that particular employee, taking
into account his personal circumstances, was being reasonable in refusing the
offer: did he have sound and justifiable reasons for turning down the offer?”
As the Employment Appeal Tribunal (Phillips J presiding) said in Executors
of J F Everest v Cox [1980] ICR 415 at p 418C, the question whether the
employee had sound and justifiable reasons for refusing the offer has to be
judged from the employee’s point of view, on the basis of the facts as they
appeared, or ought to have appeared, to the employee at the time the offer was
refused.
20.
In Cambridge and District Co-operative Ltd v Ruse [1993] IRLR 156, the Employment Appeal Tribunal (Judge Hague QC presiding) said that
loss of status was a factor which could make the employee’s refusal of the
offer reasonable. It also said at [18] that “as a matter of law, it is
possible for the employee reasonably to refuse an objectively suitable offer on
the ground of his personal perception of the employment offered”. Indeed, that
could be so even if other people think that “the personal perception” of the
employee might be wholly unreasonable. That was not the case in Ruse because the industrial tribunal had merely found it possible that “he
was being a little sensitive”. But an employee’s refusal of an otherwise
suitable offer can still be said to be reasonable when he personally thinks
that the post he is being offered involves a loss of status, even if that view
might be groundless in the eyes of others, provided that it is not groundless
from his point of view. An illustration of that was Denton
v Neepsend Ltd [1976] IRLR 164. A cold saw operator was offered
alternative work on an abrasive cutting machine. The use of such a machine
could generate a certain amount of dust, fumes and vapours, as well as some
metal fragments, and the employee had something of an obsession about the
possible hazards of exposure to them. His father-in-law had died as a result of
chest trouble, and his own father had suffered from pneumoconiosis. Although
the tribunal found that the new job was suitable for the employee, and although
his fears about the danger of exposure to these hazards may have been
groundless since his employers had complied with the relevant safety
legislation, his refusal to work on the new machine was held at [12] to be
reasonable since he “was being asked by his employers to undertake a completely
different working environment in the sense that he might be exposed to fumes,
vapours, dust and metal fragments to which he would not be exposed while
working the cold saw …” We think that this sentence suggests that the tribunal
had in effect found that the new job had not been suitable (despite its
purported finding to the contrary) for this particular employer with his
understandable fears given his family history. But whether that is right or
not, the case supports the view that the employee’s reasons for refusing the
offer had only to be “sound and justifiable” from the employee’s point of
view, even if others might not have thought that his reasons were sound and
justifiable.
The Tribunal’s mix-up
21.
The Tribunal purported to consider first the post of Physiotherapy
Clinical Specialist. It concluded that the offer of the post was an offer of
suitable employment for Ms Bird, and it regarded her refusal of that offer as
“wholly” unreasonable. It therefore dismissed her claim for a redundancy
payment without considering the suitability of the offer of the post of Senior
1 Physiotherapist.
22.
However, it is common ground that when the Tribunal was purporting to
consider the post of Physiotherapy Clinical Specialist, it got the two posts
mixed up. We begin at para. 18 of the Tribunal’s reasons where the Tribunal described
the two posts for the first time. It described the post of Physiotherapy
Clinical Specialist as follows:
“Key elements of it were to provide visible professional
leadership to the physiotherapy team; to be operationally responsible as
clinical and professional lead for provision of physiotherapy, specialising in
domiciliary and musculoskeletal out-patients; to assist if required with the
Physio Direct and to assist if required with recruitment and retention of
staff.”
The first two of
those roles were taken directly from the job summary in the job description for
the post of Senior 1 Physiotherapist. Similarly, the Tribunal described the
post of Senior 1 Physiotherapist as follows:
“Key elements of it were to lead, support and co-ordinate ongoing
development of the Physio Direct Service; to assist, diagnose, problem-solve
and discharge patients; to be clinical community specialist providing written
and verbal support to staff; to provide one-to-one and group teaching; to carry
out personal reviews of staff and to assist in business planning and service
delivery.”
The first four of those roles were taken directly from the job
summary and key responsibilities in the job description for the post of
Physiotherapy Clinical Specialist.
23.
This error would not have mattered if it was only an error in the
structure of the Tribunal’s judgment. So if the Tribunal had had the correct
job description in mind when it was considering whether the offer of the post
of Physiotherapist Clinical Specialist had been suitable for Ms Bird and
whether Ms Bird’s refusal of the offer had been unreasonable, no problem would
have been caused. The Tribunal addressed those issues in para. 39.2-39.7 of
its reasons, and we have looked carefully at those paragraphs to see whether
the Tribunal was in fact considering the post of Senior 1 Physiotherapist when
it thought it was considering the post of Physiotherapy Clinical Specialist.
The Tribunal said four things about the post which it was considering:
(i) It was the same grade as Ms Bird’s existing
post.
(ii) Ms Bird accepted that the post was within her
professional competence.
(iii)
Under the old grading system, the post had typically been held by a
Senior 1, which was a more junior grade to Superintendent 1, which had been the
grade of Ms Bird’s existing post.
(iv)
The post was described as clinical (and contrasted with her existing
post which had a high managerial content).
All of that applied just as much to the post of Physiotherapy
Clinical Specialist as to the post of Senior 1 Physiotherapist. In short,
there is absolutely nothing to tell us, one way or the other, whether the error
which the Tribunal made in para. 18 was replicated in paras. 39.2-39.7.
24.
But even if it had been, we ask rhetorically where that would leave Ms
Bird’s case. Although the Tribunal thought that it was considering the
suitability of the post of Physiotherapy Clinical Specialist when on this
hypothesis it was in fact considering the post of Senior 1 Physiotherapist, its
findings amounted to findings that the offer of the post of Senior 1
Physiotherapist was suitable for Ms Bird, and her refusal of the offer of that
post had been unreasonable. A finding to that effect would have been
sufficient to result in the dismissal of her claim. It might have been different
if there were significant differences between the two posts which she was
offered, so that one may have been suitable for her but the other not, or if
her reasons for refusing the offers were different, so that her refusal of the
offer of one of the posts may have been reasonable, but the other not. But Mr
McGrath acknowledged that Ms Bird’s reasons for refusing both of the offers
were the same, and the only relevant difference between the two posts which he
could realistically point to was that the managerial content of one was 20% at
the most compared to 15% at the most with the other.
25.
It follows that the error which the Tribunal made in transposing the two
posts did not of itself make any difference to the outcome of the case, but
that is not to say that the error can now be put to one side. Since the Tribunal
made a relatively simple error, it is necessary for us to look all the more
critically at the other criticisms of the Tribunal.
The Tribunal’s approach to suitability
26.
The Tribunal noted that when you compared Ms Bird’s existing post with
the new one it was considering, the posts were at the same grade. It
acknowledged that the new post it was considering had in the past been graded
lower than it now was, but it said that Agenda for Change had no doubt produced
many similar examples, and that was a consequence of a new system for grading
posts. There was, and could have been, no challenge to those findings. Nor
was there any doubt but that the Tribunal appreciated that the breakdown of managerial
and clinical responsibilities in Ms Bird’s existing post was such that for 80%
of her time Ms Bird had a managerial role and 20% of her time was devoted to
clinical care, and that in the new post which the Tribunal was considering the
breakdown was the very opposite. Indeed, the Tribunal correctly noted that
“suitable” does not mean “identical”. But the Tribunal went on to say three
things about the suitability of the new post which it was considering which are
potentially problematical:
(i)
“Although the post was described as being clinical, we had found that
the distinction between management and clinical was not in fact as clear cut as
this suggests. It is clear from its job content that the post did in fact
contain a significant element of what in ordinary usage would be described as
management duties” (para. 39.2).
(ii)
“Moreover, we remind ourselves that Ms Bird had expressly ruled herself
out of contention for any of the management posts that were available” (para.
39.2).
(iii)
“In our judgment, if Ms Bird had accepted the post, no sensible NHS
onlooker would have thought that she had suffered a demotion” (para. 39.3).
27.
(i) was quite a surprising finding. Looking at the job descriptions of
both the new posts, there were clearly elements of both posts which involved a
measure of clinical leadership, but we think it highly questionable for
them to be described as containing an element of managerial duties, let
alone a significant element of such duties. It may have been different if
there had been detailed evidence of what the new posts really involved, but the
Trust did not suggest to us that there had been such evidence before the Tribunal.
In any event, even if the new posts could properly have been described as
having an element – even a significant element – of managerial (as opposed to
clinical leadership) duties, the fact remains that Ms Bird’s existing post was
essentially a managerial one and the one the Tribunal was considering was an
essentially clinical one. We fear that the Tribunal did not factor the real
difference between Ms Bird’s existing post and the post which it was
considering into its consideration of the suitability for Ms Bird of whichever
post it was considering.
28.
As for (ii), it is unquestionably the case that Ms Bird had not applied
for purely managerial posts. Instead, she had decided to wait for a post with
the right balance of managerial and clinical responsibilities to come along.
But we do not think that that was relevant to the suitability of the posts
which she was eventually offered. Her unwillingness to be considered for
purely managerial posts did not make the posts which she was eventually offered
any more suitable than they would otherwise have been, bearing in mind that the
Tribunal was required to focus on the nature of the posts which she was
offered. It would have been different if the Trust had offered her any of the
purely managerial posts, and if it was her refusal of those posts which was
said to have deprived her of her entitlement to a redundancy payment, but that
was not the Trust’s case. Having said that, Mr McGrath did not argue that in
this respect the Tribunal took account of an irrelevant consideration, and we
therefore say no more on the topic.
29.
As for (iii), one of the criticisms of the Tribunal is that by referring
to what the sensible onlooker would have thought, the Tribunal substituted, for
its own assessment of whether Ms Bird’s acceptance of the new post which the Tribunal
was considering would have amounted to a demotion, the assessment of the
“sensible NHS onlooker”, whose perspective may have been very different from
that of the Tribunal. We acknowledge that that is a possibility, and we agree
that if that was what the Tribunal did, it would not have been a justifiable
approach. But it is equally possible that the Tribunal was simply testing its
own view of whether Ms Bird’s acceptance of the new post which the Tribunal was
considering would have involved a demotion by asking what someone in the
National Health Service would have thought. We cannot tell whether that was
what the Tribunal was really doing.
30.
A more compelling criticism of the Tribunal, in our view, is that in
considering whether Ms Bird’s acceptance of the new post would amount to a
demotion, the Tribunal only considered some of the points made on Ms Bird’s
behalf, and not the principal one. In para. 39.3 of its reasons, the Tribunal
dealt with her argument that by accepting the new post she would be managed by
someone who she had expected herself to manage, and that under the old grading
system, the new post had typically been held by someone at a lower grade than
the grade for her existing post. But the Tribunal did not refer to what Mr
McGrath says was Ms Bird’s core point in the Tribunal, namely that she would be
moving from managing a team of physiotherapists and occupational therapists to
being managed within a team, and that she would no longer be able to say that
she was a manager within the National Health Service. That may have been
because the Tribunal – erroneously, says Mr McGrath – mistakenly overlooked Ms
Bird’s real case on loss of status, which is borne out by the opening words of
para. 39.3 of its reasons: “Mr McGrath did not refer to the issue of status in
connection with suitability …” Mr McGrath told us that loss of status was at
the forefront of the case he was advancing. However, it may be that the Tribunal
was alive to the importance being placed by Ms Bird on loss of status,
but wrongly thought that it was relevant to the reasonableness of her refusal
of the offers rather than to the suitability of the posts she was being
offered.
31.
In summary, we think that the Tribunal’s decision on the suitability of
the post it was considering might have been different if it had factored
into the equation (a) the fact that Ms Bird’s existing post was essentially a
management one and the new post essentially a clinical one, and (b) the
argument that she would be moving from managing a team of physiotherapists and
occupational therapists to being managed within a team and would not be able to
say that she was a manager within the National Health Service.
The Tribunal’s approach to reasonableness
32.
The Tribunal thought that Ms Bird’s position had changed over time and
had in certain respects been contradictory. For example, the Tribunal noted
(a) her earlier refusal of purely managerial posts, even though her existing
post was essentially a managerial one, (b) her initial reluctance to explain
why the new posts she was offered were unsuitable for her, (c) her initial claim
that she could not carry out the duties of the new posts without training,
which conflicted with her evidence that they were comfortably within her
competence, and (d) her claim in evidence that the post of Physiotherapist
Clinical Specialist “amounted to no more tha[n] manning a telephone helpline,
as in a call centre”, which was plainly not the case. But the Tribunal added
in para. 39.6 of its reasons:
“If she had any perception of loss of status it was, as we have
explained above, a quite irrational one, and we consider that there is an
important distinction between a perception which is personal, and might not be
shared with others, and one which in fact lacks any sensible basis.”
33.
The first few words suggest some scepticism of whether Ms Bird really
did believe that her acceptance of the new post the Tribunal was considering
involved a loss of status. But since the Tribunal did not find that she did
not believe that, we put that to one side. The criticism of the Tribunal here
is that by saying that her perception of loss of status was “a quite irrational
one”, the Tribunal had failed to follow the accepted subjective test for
deciding unreasonableness. Indeed, if it said that once the Tribunal had not
found that she had not genuinely believed that there would be a loss of status
if she accepted the new post which the Tribunal was considering, the Tribunal
should then have concluded that her refusal of the offer of that post was
reasonable.
34.
We agree with the first part of the argument but not the second. For
the reasons in [19]-[20] above, the Tribunal had to look at the new post which
it was considering from Ms Bird’s point of view. It had to ask whether her
reasons for concluding that her acceptance of the new post which it was
considering would involve a lack of status were ones which she could reasonably
regard as sound and justifiable. The problem is that the Tribunal did not do
that. The contrast should not have been between “a perception which is
personal, and might not be shared with others” and “one which in fact lacks any
sensible basis”. The contrast should have been between a personal view which
might not be shared by others but which Ms Bird could reasonably reach given
her particular circumstances, and a personal view which might not be shared by
others but which Ms Bird could not reasonably reach even when viewed through
the prism of her particular circumstances. That is where the Tribunal went
wrong. By considering for itself whether Ms Bird’s acceptance of the new post
it was considering involved a demotion, and by concluding that her view was
irrational, the Tribunal was substituting its own view on the topic for Ms
Bird’s view. But it is not right to say that the only issue which the Tribunal
had to address was the genuineness of her view. The Tribunal had to consider
whether her view was reasonable, and that question had to be answered by
reference to whether someone in her particular circumstances could reasonably
have taken the view she did. We cannot say what conclusion the Tribunal would
have reached if it had approached the issue in that way.
Conclusion
35.
Since the Tribunal’s approach to the two issues which it had to address
was flawed, its decision cannot stand. Ms Bird’s appeal must therefore be
allowed, and the finding that she was not entitled to a redundancy payment must
be set aside. We have considered whether we should remit the case to the same Tribunal
for it to reconsider the issues which it had to address in the light of this
judgment, but we think that that would be inappropriate in the light of the Tribunal’s
error in mixing up the two posts. Apart from anything else, the Tribunal may
be tempted, albeit completely unconsciously, to reconsider those issues in such
a way as would not affect its ultimate conclusion about Ms Bird’s entitlement
to a redundancy payment. With some regret, because we do not want to put the
parties to the trouble and expense of re-litigating the whole of the claim
again, we have concluded that Ms Bird’s claim should be remitted for rehearing
by a differently constituted Tribunal.
