Appeal No.	 EAT/418/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 October 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR D J JENKINS MBE
MRS M E SUNDERLAND JP

LINCOLN DISTRICT HEALTHCARE NHS TRUST	APPELLANTS

MR R BROWN	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR T LINDEN
(Of Counsel)
Messrs Wansbroughs Willey Hargreaves
Solicitors
241 Glossop Road
Sheffield
S10  2GZ	

		JUDGE CLARK:   This is an appeal by the employer, Lincoln District Healthcare NHS Trust against a reserved decision of the Lincoln Industrial Tribunal promulgated with Extended Reasons on 31 January 1997, that its former employee, Mr Brown, was entitled to a redundancy payment calculated in the sum of £3,780.  A second complaint by him of unfair dismissal failed.

	The facts as found by the Tribunal were these - the Respondent was employed by the Appellants from May 1982 until his dismissal effective on 3 March 1996.  Immediately prior to his dismissal he was employed as administrator of their Saxon House Residential Care Home at Welton, nr Lincoln.  

	The Appellant decided during 1995 that Saxon House was to close, and the residents were to be transferred to other locations.  In these circumstances the Respondent was identified for redundancy, subject to suitable alternative employment being found for him elsewhere within the Appellant’s organisation.

	On 1 November 1995 Mr Offiler, the Appellant’s Personnel Manager, wrote to the Respondent offering him alternative employment as administrator of another of the Appellant’s establishments at Witham Court.  He was invited to discuss the position with the Manager at Witham Court and asked to communicate his acceptance of the new post in writing by 30 November.  In fact he neither accepted nor rejected the post within that time-scale.

	On 4 December the Respondent commenced a period of sick leave from which he did not return prior to termination of his employment on 3 March 1996.

	On 5 December the Appellant’s Mental Health Services Manager, Mr Hadlington, wrote to the Respondent informing him that if he refused the post at Witham Court, which the Appellant considered to be suitable alternative employment, he would be disentitled to a redundancy payment and his employment would end on 3 March 1996.  He was asked to accept or reject the offer of employment by 18 December (misdescribed as the 18 November in paragraph 4 of the Tribunal’s reasons).

	A reply was sent to the Appellant’s General Manager of Mental Health on 12 December by Mr Bratt, the Respondent’s trade union representative, acting on his behalf.  He stated that the Respondent was then on sick leave and could not properly consider the alternative employment offered to him.  He asked that the Respondent be permitted to defer his decision.

	Further correspondence ensued and on 10 January 1996 a report from the Respondent’s General Practitioner, Dr Inder, was sent to the Appellant.  Dr Inder was of the opinion that the Respondent was not then fit to make a decision on his future employment with the Appellant.

	The Tribunal found that as a result of that letter the Appellant extended the closing date for the Respondent’s reply to 16 February, some two weeks before Saxon House was due to close, failing which the employment would end on 3 March and no redundancy payment would be made.

	Mr Linden who appears on behalf of the Appellants has pointed out that there is a factual error contained in that finding.  He says that the decision to extend the closing date to 16 February was taken in a letter from the Appellant dated 9 January, that is the day before Dr Inder wrote his report.  We shall return to the significance of that error later in this judgment.

	In the event, no reply was received from the Respondent and his employment was duly terminated on 3 March 1996.  

The Industrial Tribunal decision
	It was accepted that the Respondent had been dismissed by reason of redundancy.  The question was whether or not he was disentitled from receiving a redundancy payment by virtue of the relevant provisions of Section 141 of the Employment Rights Act 1996.  Section 141 provides, so far as is material:
“(1)  This section applies where an offer (whether in writing or not) is made to an employee before the end of his employment —
(a)	to renew his contract of employment, or
(b)	to re-engage him under a new contract of employment,
with renewal or re-engagement to take effect either immediately on, or after an interval of not more than four weeks after, the end of his employment.
(2)  Where subsection (3) is satisfied, the employee is not entitled to a redundancy payment if he unreasonably refuses the offer. 
(3)	  This subsection is satisfied where —
(b)	  those provisions of the contract as renewed, or of the new contract, would differ from the corresponding provisions of the previous contract but the offer constitutes an offer of suitable employment in relation to the employee”

	The Industrial Tribunal correctly directed itself in accordance with authority that the onus of proving both that the offer was one of suitable alternative employment and that the offer was unreasonably refused by the Respondent, lay on the Appellant employer.

	As to suitability, the Tribunal was satisfied that the offer of the post at Witham Court was a genuine offer and that it represented suitable alternative employment for the Respondent.  However, it was not satisfied that the Respondent had unreasonably refused that offer.  We pause to observe that the test is subjective; the employee’s behaviour and conduct must be judged, looking at it from his point of view, on the basis of the facts as they appeared or ought reasonably to have appeared to him, Everest Executors v Cox [1980] ICR 415.

	The Tribunal concluded that, in the light of Dr Inder’s opinion, the Respondent was not fit to make a decision as to his future throughout the period commencing on 1 November 1995.  In particular, even although he did not commence sick leave until 4 December, the Tribunal accepted the Respondent’s evidence that he was not feeling fit enough to apply his mind clearly to the question of alternative employment during the period 1 November-4 December, supported by the opinion of Dr Inder, subsequently expressed in a letter dated 21 October 1996.  It was not satisfied that the Respondent had refused the alternative employment offered to him, or that his failure to reply to the Appellant amounted to an unreasonable refusal in all the circumstances of the case.

The Appeal
	Mr Linden has attacked this Industrial Tribunal’s reasoning on a number of bases.  First he refers to the factual error which we have identified earlier in this judgment, which appears both in paragraphs 10 and 13 of the reasons.  He submits that as a result the Industrial Tribunal wrongly took the view that the employer had somehow acted unreasonably in failing to further extend the final date for acceptance of the offer of alternative employment beyond 16 February, when it had, in the first instance, extended the time for acceptance to that date as a result of Dr Inder’s letter of 10 January.

	Secondly, he does not quarrel with the Tribunal’s self-direction that the burden of proof lay on the employer to show that the suitable alternative employment offered had been unreasonably refused by the Respondent.  However, he submits that in the light of that error, in a case where the rival contentions were fairly evenly balanced, the error which the Tribunal made had a material effect on the Tribunal’s final conclusion.  Further, he submits, that it was common ground on the pleadings and at the hearing itself, that the Respondent’s failure to respond at any time to the offer of alternative employment amounted to a refusal, and that the Tribunal had fallen into error in finding that there was no refusal in this case, and that that necessarily infected its conclusion that there had been no unreasonable refusal by the Respondent.

Conclusion
	The question as to whether an employee has unreasonably refused an offer of suitable alternative employment is essentially one of fact for the Industrial Tribunal.  In considering this appeal we have been assisted by the judgment of the Court of Session (Lord Guthrie dissenting) in Williamson v National Coal Board [1975] ITR 43.  Failure to respond to an offer by the employer in the absence of a proper explanation may, on the facts, amount to an unreasonable refusal.

	However, on the facts as found in this case, the Respondent provided an explanation for not responding to the Appellant’s offer first made on 1 November; he was not in a fit state to do so.  That explanation was supported by his General Practitioner.  The Appellant obtained no medical advice to the contrary.  The Industrial Tribunal accepted that explanation.  It follows, in our judgment, that the Tribunal were in these circumstances entitled to go on to conclude that there was no unreasonable refusal.

	In reaching that conclusion we are not persuaded that the factual error to which Mr Linden referred in paragraphs 10 and 13 of the reasons, that is the fact that the Appellant took the decision to extend the time for acceptance of the offer before Dr Inder wrote his letter of 10 January, has a material bearing on the Industrial Tribunal’s overall finding that there was no unreasonable refusal by the Respondent.

	Further, even if the Tribunal were wrong to find that there was here no refusal, we are satisfied that it was open to them to find that any refusal was not unreasonable, and they did so find in the alternative in paragraph 14 of their reasons.

	Finally, we can see no ground for interfering with the Tribunal’s decision on the basis that they proceeded on the footing that the burden of proof lay on the Appellant.  It properly directed itself as to the burden of proof and applied it to the facts as it found them.  In these circumstances at this Preliminary Hearing we have come to the view that the appeal discloses no arguable point of law to go to a full hearing and accordingly it must be dismissed at this stage.