Appeal No.EAT/184/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 February 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR L D COWAN
LORD DAVIES OF COITY CBE

MR E NENJI	APPELLANT

BIRMINGHAM CHILDREN’S HOSPITAL NHS TRUST	RESPONDENT

Transcript of Proceedings

FULL HEARING

Revised

	APPEARANCES

For the Appellant	Mr OA Adeeko
(of Counsel)
19 Moat Avenue
Green Lane
Coventry
CV3 6BT	
For the Respondent	Mr A Hillier
(of Counsel)
Messrs Mills & Reeves
Solicitors
Midland House
132 Headley Road
Hagley
Birmingham B16 9NN	

JUDGE CLARK 	By an Originating Application presented to the Employment Tribunal and dated 5th January 1998, the appellant, Mr Nenji complained of unfair dismissal by the respondent, the Birmingham Children’s Hospital NHS Trust, (the Children’s Trust.)  

1.	In that application, he gave as his period of continuous employment with the trust, the dates 1st November 1995 – 7th November 1997.  If correct, that would give him two years continuous employment for the purpose of founding the employment tribunal’s jurisdiction to entertain his complaint under Section 108(1) of the Employment Rights Acts 1996.  That period was subsequently reduced to one year with effect from 1St June 1999 (see SI1999/1436) but that amendment does not affect the statutory two years qualifying period in this case. 

2.	By their notice of appearance, the respondent contended that the relevant period of continuous employment was from the 15th July 1996 – 7th November 1997; less than two years.  Accordingly, it was directed that as a preliminary issue, the employment tribunal should first determine whether or not the appellant has completed the necessary qualifying period of service.  

3.	That issue came before an employment tribunal sitting at Birmingham under the chairmanship of Mr. J. Van Gelder over three days on the 24th July, 7th August and 5th October 1998.  By a decision with extended reasons dated the 1st December 1998, the employment tribunal accepted the period of continuous employment contended for by the respondent.  It held that the appellant had insufficient service to qualify for unfair dismissal protection.  However, the application was stayed pending the outcome of the Seymour Smith litigation.  We note that the House Of Lords has now determined that case, judgement having been given on the 17th February 2000.  

4.	The employment tribunal rejected the appellants case on the facts:
a)	that his employment with the Children’s Trust had commenced on the 1st November 1995 or (b) that it had commenced on 1st July 1996.  
Having found that the Appellant’s employment commenced on the 15th July 1996, the Employment Tribunal were required to determine, among other issues, whether the appellant was able to rely on the provisions of the Employment Protection, (Continuity of Employment of National Health Service Employees) (Modification) Order 1996, (the 1996 order) to establish that his previous service within the NHS counted as continuous with his employment with the children’s trust.  

5.	The relevant provisions of the 1996 order are these: By article 12a, 
“relevant employment” is employment by a health service employer as a medical practitioner…. in the grade of Registrar, Senior Registrar, Specialist Registrar…. while undergoing professional training, which involves that person being employed successfully by a number of different health service employers:  
Article 3 provided for modification to certain provisions of the Employment Protection (consolidation) act 1978, including the section 64(1) now section 108(1) of the 1996 act, as provided for in Article 4. 
Article 4 provides:
“In the application of the modification set out in article 4 of this Order to any period of relevant employment occurring wholly before the date of the coming into force of this Order, the modifications will not apply to any such period except when the prescribed person has been taken into relevant employment by another health service employer immediately upon the termination of the period of relevant employment first referred to, and where the period of relevant employment second referred to continues after that date.”
	
6.	It follows that where a person is in relevant employment with one health service employer and is then taken into relevant employment by another such employer, continuity will not be broken.  Thus the question arose (subject to a further point to which we shall return) as to whether, if the appellant was previously in relevant employment, he was then taken into relevant employment by the Children’s Trust.  

7.	The Employment Tribunal found that he was not taken into relevant employment by the Children’s Trust on the 15th July 1996.  In order to follow their reasoning in arriving at that conclusion it is necessary first to set out some of the Appellant’s employment history, as found by the Employment Tribunal.  

8.	 The Appellant held various medical posts at hospitals in this country from May 1985.  On the 11 May 1993, he took up the post of registrar in the Department of Neurosurgery with Sandwell District Health Authority.  In March 1995 his employer became the South Birmingham Health Authority, and in April 1996, as a result of the creation of various NHS Trusts, his contract of employment was transferred to the University Hospital Birmingham NHS Trust, (The University Trust) with effect from 1 April 1996.  He remained an employee of the University Trust until his contract was terminated on the 28 June 1996.  Prior to that date he had also carried out work for the Children’s Trust, not, the Employment Tribunal found, as an employee of that Trust, but on the basis that his services were paid for by the Children’s Trust to his employer, the University Trust.

9.	The Employment Tribunal found at Paragraph 3(5) of their reasons, that at that time the Children’s Hospital was hoping to obtain a further person for the neurological department of the Children’s Trust.  They go on to say this:

3(5) “Approval for a post at this level require obtaining funding for the post and also educational approval from the specialist advisory committee which dealt with the training.  A detailed evaluation of the training requirements of the NHS had been carried out during 1992 and 1993, which had led to a number of proposals incorporated in the Calman Report concerning the procedure to be adopted in dealing with the recruitment and training of doctors and other medical staff throughout the NHS.  The importance of obtaining both funding approval and training approval was emphasised in the guide provided for medical staffing which was issued by the West Midlands office of the NHS executive,  in November 1994, which specifically provided (at clause 4:1) that training grade posts could not be filled until the post had both educational and starting approval.  Without such approval it would not be designated a training post. “

10.	Whilst employed by the West Midlands Regional Health Authority and the University Trust, the appellant regularly worked under the direction of a consultant neurosurgeon Mr A. D. Hockley.  There was a conflict of evidence between Mr Hockley and the Appellant as to the terms on which the appellant came to join the Children’s Trust in July 1996.  Mr Hockley contended that he had offered the Appellant a post as a Locum whilst the post was subject to a visit by the Specialist Advisory Committee (SAC.)  If the committee gave training approval to the post it would then be advertised and the Appellant would be free to apply for it.  The appellant, on the other hand, told the Employment Tribunal that he had agreed with Mr Hockley that he would accept the post on the basis that he could occupy it as a Registrar under training and that he would be allowed to remain in that post until he had completed the training and passed the examinations.  The Employment Tribunal observed that there was no documentation to determine which version was correct.  

11.	It is convenient, at this point, to break off from the Employment Tribunal’s reasons in order to identify the principal issue which is before us for determination at this full appeal hearing.  At an ex parte Preliminary Hearing held before a division presided over by Charles J on the 30 June 1999, the Employment Appeal Tribunal was faced with a Notice of Appeal, running to 18 grounds of appeal.  The purpose of a Preliminary Hearing is to decide what, if any points of law are raised in a Notice of Appeal, which ought to be argued at a full hearing.  In a careful judgement, Charles J, on behalf of that Employment Appeal Tribunal, dismissed all grounds save for those raised at grounds 1and14. They relate to the question as to whether the Appellant was undergoing professional training with the Children’s Trust for the purposes of Article 1(2) (a) of the 1996 order.

12.	The point of law identified by Charles J was this: Did the Employment Tribunal fall into error in finding that the Appellant was not undergoing professional training because SAC approval had not been obtained for the post which he occupied with the Children’s Trust.  

13.	Before dealing with the competing arguments on that point we should also mention a second point raised at paragraph 8 of Charles J’s judgement: 
“It is there suggested that at this full hearing we should consider whether even if the appellant was undergoing professional training in his post for the children’s trust, the gap in time between his leaving the University trust on the 28th June and joining the children’s trust on the 15th July 1996, itself broke continuity of employment.”.
	
It seems to us that that point only arises if the Appellant succeeds on the first point, the professional training point, however we should observe that that argument does not appear to have been raised below and as Charles Justice recognised, the Employment Tribunal made no findings as to the position that existed between the 1-15 July 1996.  Mr Adeeko advanced a compelling argument in his skeleton argument based on authority including Kumchyk v Derby City Council [1978] ICR1116 and Jones v Burdett Coutts School [1999] ICR38, that there are no exceptional circumstances which would permit the Respondent to take this point for the first time on appeal, particularly where further findings of fact by the Employment Tribunal would be necessary to determine the point as a matter of law.  

14.	To that submission we would add a reference to Hellyer Brothers Ltd v Mcleod (1987) ICR526 in which the Court of Appeal made it clear that the general rule preventing an Appellant from raising a new point on appeal applied with equal force to a Respondent.  Mr Hellier indicated at the outset of this hearing that he would not be relying on the second point.  We think that that was a perfectly proper concession to make.  In these circumstances we are concerned only with the Article 1(2)(a), Professional Training Point. Mr Adeeko’s first complaint is that the Employment Tribunal failed to make findings of fact on the conflict of evidence between Mr Hockley and the Appellant as to the terms on which the Appellant was engaged by the Children’s Trust, whether as a registrar in training or as a locum.  Such a finding he submits was essential see Levy and Marrable and Co. [1984] ICR 583.  Further he submits that the Employment Tribunal failed to make findings on the Appellants grade or status within the Children’s Trust.  Thus, adequate reasons for the Employment Tribunal’s eventual conclusion, paragraph 3(10) of their reasons, that the Appellant was not undergoing professional training within the meaning of Article 1(2)(a) of the 1996 Order had not been given.  See Meek v City of Birmingham District Council (1987) IRLR 250.

15.	In support of these submissions, Mr Adeeko has taken us to what he describes as overwhelming evidence before the Employment Tribunal which went to show that the Appellant was employed as a registrar, not a locum.   We return to the West Midlands Guide (the Guide) to Medical Staffing, published in November 1994, which is referred to at paragraph 3 (5) of the Employment Tribunal’s reasons. 
 Paragraph (4)(1) to which the Employment Tribunal specifically refer, provides as follows:

RECRUITMENT OF MEDICAL AND DENTAL TRAINEES (EL (94) 58) 
CL 4.1”This Executive Letter published in July 1994, clarifies the situation regarding training grade posts, and states that “training grade posts of programme in the NHS may not be advertised or filled unless the post and/or programme has both current educational and staffing (manpower) approval.  All advertisements must contain confirmation to that effect.  Any post which does not have the appropriate education and staffing approvals…. Cannot be designated a training post.  “

Under the heading training grade post, paragraph 12:1 of the guide provides:
12.1.“It is important that all doctors who are undergoing training are in recognised posts (i.e. one of those listed below).  Those posts must have both Education and Staffing Approval.  The most compelling reason for this so that the quality of training can be assured by an outside organisation, including assessment of the effect that the post will have upon the training opportunities of other training posts within the same department/unit.  This applies to both EU/EFTA graduates, as well as overseas doctors.”

16.	The posts listed below in paragraphs 13 – 14 include Senior Registrar and Registrar grades.  Paragraph 13.3 provides: -
13.3 Educational approval for these posts is given by the appropriate medical college, and the distribution is decided by the appropriate Training Committee of the Board of Postgraduate Medical and Dental Education.”

Paragraph 17 deals with LOCUM TENENS.  
17:1: The term ‘Locum’ should be reserved for a doctor who is temporally employed when a substantive post is vacant due to leave or other causes. 
17.3	Incumbents of locum posts should be made fully aware that their time cannot count towards training.  

17.	Apart from the dispute between Mr Hockley and the Appellant as to what was agreed between them at the outset of the Appellant’s employment with the Children’s Trust, the Appellant relies on a notification of commencement document (117-8) and the statement of term and conditions of his employment issued by the Trust and dated of 22 April 1997 (59) in which his appointment is described as that of Registrar/Paediatric Neurosurgery

18.	 That, it is submitted, brings the Appellant within the category of a training post holder as defined in paragraph 12 of the guide.  That may be contrasted with the Appellant’s subsequent appointment, for example to the Walsgrave Hospitals NHS Trust in August 1998.  In his letter of appointment to that post dated 14 July 1998 
(105) he is offered the post of “Locum Registrar in Neurosurgery.”  

19.	We see the force of that evidence but equally we are satisfied that the tribunal considered and rejected the point.  Dealing first with the Notification of Commencement form, (and the statement of terms and conditions dated the 22nd April 1997,) we see that within their findings of fact at paragraph 3(8) of their reasons, the Employment Tribunal observed Ms Witter, the Respondents Personnel Officer who gave evidence before the Employment Tribunal explained that as to the job title it was the standard procedure by the Trust when appointing a doctor or surgeon who had considerable experience at a senior level, to pay him at the appropriate level.  For that purpose the contractual documentation refereed to the post as Registrar rather than Locum so as to attract the higher rate of pay.  It seems to us the Employment Tribunal accepted that explanation.  Further at paragraph 3(10) of their reasons, the Employment tribunal attach importance to a note of a Training Committee meeting held on the 15 April 1997 and chaired by Mr Hockley.  There is a reference in that minute to the Appellant, which reads as follows:
“E Nenji (Locum Visiting Registrar) essentially the system includes 6 NTM specialist registrars with Mr Nenji holding a funded so far non SAC approved post, awaiting decision following 26th March SAC visit.  “

20.	The Employment Tribunal appears to have accepted that that minute accurately reflected the true position in relation to the post held by the Appellant.  Specifically, there was no training approval for the post at the time of his appointment on the 15 July 1996; hence, it was not a training post for the purposes of paragraph 4.1 of the 1994 guide; hence it could not be said that the Appellant was undergoing professional training within the meaning of Article 1(2)(a) of the 1996 order.   

21.	Mr Adeeko submits that the tribunal was wrong to conclude that for a post holder to be undergoing professional training it was necessary for that post to have educational approval from the SAC.  Article 1(2)(a) does not impose such a requirement.  Further he submits that approval under paragraph 13.3 of the guide is given by the appropriate medical college, here the Royal College of Surgeons and not SAC.  Those submissions raise two points.  First a construction question.  What do the words ‘undergoing professional training’ in Article 1(2)(a) mean?  We accept Mr Hillier’s submission that it must mean a training grade post, that is one which has Education and Staffing approval as noted in paragraphs 4.1 and 12.1 of the guide.  

22.	We do not understand Mr Adeeko to dissent from that preposition.  Secondly, we are satisfied looking at the Glossary of Terms (20A) that the SAC is the appropriate Committee of the relevant medical college charged with giving educational approval.  We therefore reject Mr Adeeko’s submission on that point.

23.	In these circumstances, we are satisfied that it was not, contrary to Mr Adeeko’s submission strictly necessary for the Employment Tribunal to make a finding as to the disputed conversation between Mr Hockley and the Appellant at the start of his employment with the children’s trust, (reasons paragraph 3(6)) nor as to whether the Appellant was a Locum, although we think that may well follow from the Employment Tribunal’s critical finding of fact which was that the post held by the Appellant was not that of registrar, despite the description appearing on the contractual documentation, because the post did not have educational approval.  Without that approval, it was not a training post and therefore not relevant employment for the purposes of Article 1(2)(a).  The Appellant was not undergoing professional training in the post.  In these circumstances, we have concluded that the Employment Tribunal's decision discloses no error of law. The appeal is dismissed. The case is returned to the Employment Tribunal to determine what course to take in the light of the House of Lords decision in Seymour - Smith.