Appeal No. EAT/1392/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 October 2001

Before
HER HONOUR JUDGE A WAKEFIELD
MR D J HODGKINS CB
MR P M SMITH

MRS M M BRIGGS	APPELLANT

MR N S BHATTI	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS NANHOO-ROBINSON
Representative
Instructed by
Wakefield District Citizens Advice Bureau
Westfield Resource & Enterprise Centre
Westfield Lane
South Elmsall
Pontefract
West Yorkshire  WF9 2PU

	
For the Respondent	MR N S BHATTI	

JUDGE A WAKEFIELD

1.	This is an appeal by Mrs Marilyn Briggs against the decision of an Employment Tribunal sitting at Sheffield by which her complaints of unfair dismissal, breach of contract and entitlement to a redundancy payment were all dismissed.

2.	The undisputed factual background to the complaints was that the Appellant, who was a State Enrolled Nurse or Registered General Nurse Class 2, had worked since March 1994 at “The Coppins” in Barnsley which had been until December 1999 registered as both a nursing and a residential home.  The Respondent became owner of the home in December 1999 and it was then re registered as a residential home only.

3.	The consequence of this re-registration was that the Appellant was no longer legally entitled to carry out at The Coppins any nursing procedures in the course of her work, other than what is described in the Registered Homes Act 1984 as “personal care.”  She resigned from her job with effect from 27 January 2000 and by her Originating Application to the Employment Tribunal she claimed that there had been a fundamental breach of her contract such as to amount to a constructive dismissal, that such dismissal was unfair and/or by reason of redundancy.

4.	Initially, it had been contended by the Appellant before the Employment Tribunal that the change in registration of the home would, had she continued working there without performing any nursing duties, have jeopardised her registration on the nurses register.  As it transpired at the hearing and as the Appellant then and now accepts, work in a supervisory capacity at the re-registered home (which the Respondent wished her to continue to do after December 1999) would not in fact have affected her registration on the nurses register.

5.	The Respondent had, as the Employment Tribunal found, so advised her prior to the her resignation.  The issue before the Employment Tribunal was, therefore, whether the removal of nursing duties from the Appellant’s day to day work amounted to a fundamental breach of her contract of employment.  There were no other changes to the terms and conditions of that employment.

6.	On this issue the Tribunal found as follows:

“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.

The position as proposed by the respondent post-December 1999 was that her pay and other conditions would remain the same.  Her title would be Nurse In Charge and so she would retain the supervisory duties to which we have referred.  She would not, however, have been able to carry out the nursing procedures which we have referred to or indeed any other nursing procedures properly so defined.

Whilst the tribunal found it would be frustrating and irksome for the applicant to have to call in an external agency to do something that she could do perfectly well (although at that stage not legally) herself, the appropriate test we must apply is whether there has been a breach of contract and moreover whether that breach is fundamental.  We do not consider here that there has been a breach of contract still less a fundamental one.  The majority of her duties were unchanged and her continued qualification was not jeopardised.  That part of the applicant’s claim fails.”

7.	Before us and in accordance with the Notice of Appeal this conclusion by the Tribunal is said to be one that no reasonable Tribunal could have reached.  It is argued that the Employment Tribunal failed to take any account of the levels of professional skills which the Appellant had attained and wanted to use and that for her the nursing aspect of her job, though minor in terms of time, was the principal part of her job and important to her in terms of status.

8.	We have been unable to identify any error of law in the analysis made by the Employment Tribunal in the parts of the decision I have quoted or any others.  They took account of all the relevant factors, did not include any that were irrelevant and reached the conclusion which we consider was quite open to them on the evidence.  That conclusion cannot be said to be perverse.

9.	The other ground of the appeal relates to the Employment Tribunal’s finding as to the entitlement to a redundancy payment.  They said this in their paragraph 10:

“The redundancy claim arises because the applicant says that her job had ceased to exist when the nursing duties were removed.  It appears that it is a redundancy payment which the applicant was seeking immediately before her resignation and indeed she claims her redundancy payment in her letter of resignation.  The majority of the tribunal took the view that for the same reason that we had held against the applicant on the fundamental breach point we could not regard her as redundant in circumstances where only a small part of her job had ceased to exist.  The minority view was that as at the end of her day the applicant had not been replaced directly there could be a redundancy situation.  However, the minority view was also that nevertheless the applicant was not entitled to a redundancy payment as she had failed to undergo the 4 week trial period which had been offered by the respondent in what might have proved to be suitable alternative employment, ie the same job but without the nursing procedures.  At the end of the day the unanimous view of the Tribunal was therefore that the applicant’s claim for a redundancy payment failed.”

10.	Any analysis of entitlement for a redundancy payment pre supposes that there was a dismissal: see section 139 of the Employment Rights Act 1996.  As the Employment Tribunal had in the earlier part of their decision found, and quite properly in our view, that there was no such dismissal there cannot be any entitlement to a redundancy payment.  The appeal is dismissed.