Appeal No.	 EAT/1438/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 June 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR A C BLYGHTON
MRS J M MATTHIAS

MRS J C ACFORD & OTHERS	APPELLANTS

PLYMOUTH HOSPITALS NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J BOWERS
(of Counsel)
Ms C Cleave
Regional Legal Officer
GMB Southern Region
205 Hook Road
Chessington
Surrey KT9 1EA	
For the Respondents	MR C BEAR
(of Counsel)
Messrs Bevan Ashford
Solicitors
35 Colston Avenue
Bristol BS1 4TT	

	JUDGE PETER CLARK:     This is an appeal by nine Applicants before the Plymouth Industrial Tribunal, sitting over five days in May and September 1996, against that Tribunal’s majority decision that they were not unfairly dismissed by the Respondent employer, Plymouth Hospitals NHS Trust.  Extended Reasons for that Reserved Decision are dated 6 November 1996.

The Background

	The Appellants were employed between 10 and 20 years by the Respondent and its predecessor in the Oncology Directorate as nurses or nursing auxiliaries.

	Since 1988 new recruits of the Oncology Directorate have been employed on contracts whereby they work all shifts, night and day.  That shift system is called Internal Rotation (IR).  These Appellants commenced employment before 1988, and consequently were not obliged to work the IR system contractually.

	In March 1995 the Respondent wished to move to an IR system for all nursing staff in the Oncology Directorate.  In May 1995 discussions took place with the relevant Trade Unions, including the GMB, of which the Appellants were members, and subsequently individual staff meetings were held, concluding in late July.  No agreement as to the imposition of IR was reached.

	Thereafter management decided to impose compulsory IR.  A committee had been formed and it concluded that flexibility in staff rostering would solve most of the staff’s problems.

	By a letter dated 1 September 1995 from Sister Baldry, the Clinical Nurse Manager, all staff were informed that IR duties would commence on 1 January 1996, following a three month notice period starting on 1 October 1995.

	On 8 November the Respondent wrote again to staff in these terms:

“If you have been contracted to work nights or days only, then your current contract of employment will cease at the end of the notice period.  You will of course be offered a new contract with continuity of employment guaranteed.  All existing Whitley terms and conditions will be maintained except for re-allocation of hours.”

	On 22 September 1995 the GMB had registered a dispute under stage 1 of the agreed disputes procedure.  It was not accepted by the Respondent.  Thereafter the union attempted to move to stages 2 and 3 in the procedure.  Again the Respondent refused to acknowledge the dispute, that is a collective grievance on behalf of the affected members, as being “legitimate”.

	On 1 January 1996 all the Appellants, save for Anne Baldry (no relation to Sister Baldry) commenced the new shift system under protest.  Anne Baldry was unable to work the new pattern and left the employment on 4 January 1996.

	The position since 1 January 1996 is encapsulated in the Tribunal’s findings at paragraph 56 of the reasons in this way:

“The roster book is now extensively used to organise shift patterns according to preference.  It used to be only for exceptional matters but is now used routinely.  Sr Baldry conjures up individual working patterns to meet the needs and desires of all the staff as far as is possible, and devotes considerable effort to doing so.”

The Industrial Tribunal Decision

	The Tribunal made the following findings:

(1)  Each Appellant was expressly dismissed by the Respondent on 31 December 1995, save for Anne Baldry who was dismissed on 4 January 1996.

(2)  The reason for dismissal was the compulsory introduction of IR.  That is, a business reorganisation which amounted to some other substantial reason, a potentially fair reason for dismissal.

The Tribunal recorded at paragraph 16 of the reasons:

“Although they do not personally accept the conclusion, the applicants are all fair minded enough to agree that there are good clinical reasons to be advanced to justify the introduction of internal rotation.  That is our conclusion.”

(3)  As to the question of reasonableness under Section 98(4) of the Employment Rights Act 1996 the Tribunal was divided.

	The Tribunal rehearsed the factors for and against concluding that the imposition of the organisational change was achieved by a fair procedure at paragraphs 90 - 91 of the reasons as follows:

“90	In favour of it being concluded to be a fair procedure are that:
(i)	There were extensive invitations to consult.
(ii)	There is the planning of rotas 6 to 8 weeks in advance so that staff can understand in advance what is expected of them.

(iii)	The section 47 Whitley procedure for income protection was implemented, although it was not a contractual requirement any longer.
(iv)	The request book for shifts accommodates staff wishes as far as possible and Sister Baldry spends a very great deal of time and effort in allocating shifts.
(v)	Where members of staff had individual problems Sister Baldry proposed alternative solutions - for example for Nursing Auxiliary Anne Baldry an individual 9 am to 3 pm shift.
(vi)	The allocation of a higher ratio of night shifts to the former night workers, after the implementation of internal rotation, and prior to its imposition the expression that that would be the case.
91	Against that:
(i)	it is quite clear that the internal rotation was imposed.  Though there was consultation on individual circumstances, there was no opportunity for staff input into the decision itself.  That decision was imposed and management had decided that that would be the case from 1 September 1995.  Subsequent consultation was only about dealing with problems of implementation.  Only if the night staff when interviewed in July 1995 had presented a series of insuperable problems would the management have reconsidered that.
(ii)	The collective dispute procedure was (wrongly) entirely ignored.
(iii)	One member of staff has late shifts followed by early shifts and this is a considerable strain.
(iv)	There was a degree of unfair prejudice.  The dissatisfaction with the work of the night duty staff voiced by some of the management team was unsubstantiated, the suggestion being that this led to the imposition of internal rotation for non clinical reasons not founded in fact.”

	Balancing those factors and for the reasons given in paragraphs 93 to 102 of the reasons, the minority member concluded that the Respondent had acted unreasonably in implementing the change.  The majority, in paragraph 103 of the reasons, accepted the force of the minority view, but decided that the dismissal was fair and came to a different conclusion solely, they say, because of Sister Baldry’s efforts, that is to accommodate individuals in the new shift system after 1 January 1996.  We have earlier referred to the findings at paragraph 56 of the reasons in this connection.  It was the flexibility of approach in practice following the change which tipped the balance and persuaded the majority that these dismissals were fair, given the majority finding also that consultation in the form of the disputes procedure would have been utterly useless.

	The majority drew no distinction between the case of Anne Baldry and her fellow Appellants and indeed, no such distinction is made by Mr Bowers, who appears on behalf of all Appellants today.  Accordingly, each complaint of unfair dismissal was dismissed.

The Appeal

	The first point taken by Mr Bowers is that the majority erred in law in placing reliance upon events following dismissal on 31 December 1995, that is, the way in which the new IR system was operated by Sister Baldry to accommodate individual employees after that date.  He contends that such an approach is impermissible because it offends against the principles laid down by the House of Lords in Devis v Atkins [1977] ICR 662 and Polkey v A E Dayton [1988] ICR 142, and that the case of West Midlands Co-Operative Society Ltd v Tipton [1986] ICR 192 must be confined to its own facts, that is, consideration of the disciplinary process as a whole, including a right to an internal appeal.  That does not apply here.

	We reject that submission for the following reasons:

(1)	Devis decided that an employer cannot rely upon after-acquired knowledge to alter his reason given for dismissal at the time of dismissal.  That is because the employer must show his reason for dismissal.  Plainly he cannot rely on a reason which was not in his mind at the time of dismissal.

(2)	Polkey decided that in judging the fairness of a dismissal, it is irrelevant that a fair procedure would have made no difference to the result, where the unfairness lies in a defective procedure.

(3)	Tipton is an example of an event following dismissal, the internal appeal or right to such an appeal, being capable of affecting the Tribunal’s judgment as to the reasonableness of the decision to dismiss.

(4)	This case is unusual.  Although there was a dismissal in law on 31 December 1995, all but one of the Appellants carried on working for the Respondent after that date.  In judging the reasonableness of dismissal by reason of the re-organisation, the Industrial Tribunal found first, that before the dismissal the Respondent had concluded that flexibility in shift rostering would solve most if not all of the staff’s problems.  It tested that judgment by looking at how flexibility worked in practice under the new system and found that this was so.  That finding was part of the relevant circumstances to be considered under Section 98(4).  There is no inconsistency with the approach taken by the House of Lords in Devis and Polkey.  It is consistent with the approach in Tipton.

	Secondly he submits that in any event the majority’s finding as to the efforts made by Sister Baldry to accommodate individuals after the dismissal could not overcome the deficiencies in consultation, as found by the minority and accepted by the majority.

	The evidence was that when the proposal for compulsory IR was at a formative stage there were discussions both with the union and with individuals prior to the decision to impose IR being taken on 31 August 1995.  Where the employer was criticised by the Tribunal, unanimously, was in wrongly refusing to recognise the union’s dispute, first registered on 22 September 1995, under the disputes procedure collectively agreed.  By then the decision had been taken; the majority found that consultation in the form of the disputes procedure would have been “utterly useless” because the decision to impose IR had by then been taken.  The minority member disagreed.  In our judgment both findings were permissible.  

	The Tribunal was required to balance the factors it found for and against a fair procedure having been followed.  The majority found that the factor of Sister Baldry’s efforts to accommodate individuals tipped the balance.  That was a judgment which it was entitled to reach.  Their reasons for reaching that conclusion are, it seems to us, clear on the face of the record.

	Finally, Mr Bowers contends that the majority misdirected themselves in applying the principles contained in Westminster City Council v Cabaj[1996] ICR 960.  We do not think that that is a fair reading of the reasons.  The minority member, at paragraph 99, relied upon Cabaj for the proposition that here there was a contractual right to a grievance procedure.  It was refused by the employer, and the employee was “thereby” denied the opportunity of demonstrating that the real reason for his dismissal was not sufficient.

	In our view that is a distortion of Cabaj, which was dealing with a contractual appeal procedure following dismissal.  The majority did not agree with the minority member on this point.  They were entitled to take that view.

	In all the circumstances, we have reached the conclusion that there are no grounds for interfering with this majority decision and accordingly the appeal must be dismissed.