Court of Appeal
The Employment Appeal Tribunal correctly held that the employment tribunal had incorrectly applied the test to determine whether or not an employee's refusal of alternative employment was unreasonable. However, the EAT's reliance on the band of reasonable responses test, which was the test for unfair dismissal, was misplaced.
The appellant primary care trust appealed against a decision of the Employment Appeal Tribunal allowing the appeal of the respondent (R) against a decision of the Employment Tribunal that R's refusal of alternative employment was unreasonable.
R had commenced a career as a nurse in 1976. From 1985 onwards, she had worked as a community nurse, eventually being promoted to a community modern matron, a Band 8A role involving management duties. In 2007 she was advised that she was at risk of redundancy. R was offered three alternative positions, one of which was a band 8A modern matron role at a small community hospital. Ten per cent of the duties were management duties, 45 per cent were nurse team leader duties and the remaining 45 per cent were matron duties. R rejected the offer as she had spent her career working in the community and had no desire to work in a hospital. Instead, she accepted one of the band 7 offers, which was a lesser role, on a trial basis. In the interim, R was offered a community-based role in Canada and eventually moved there in 2009. In November 2008 she was made redundant. The ET held that the band 7 role was not suitable alternative employment within the meaning of the Employment Rights Act 1996 s.141(3)(b), that R had wanted to emigrate to Canada, that the modern matron role was practically identical to R's previous role, that it was suitable alternative employment and that her rejection of it was unreasonable unders.141(2). On appeal the EAT held that the ET had failed to address the core reason for R's refusal, that emigration to Canada was not the main reason for her refusal, and that the reason given for R's refusal was reasonable, sound and justifiable. The trust sought a review of the EAT's decision, upon which the EAT held that it was plain and obvious that R's refusal of the job offer was within the reasonable band of responses and that the contrary was unarguable. The EAT further held that it was bound to substitute its own findings on the law. The issues for consideration were whether (i) the ET had erred in considering that R had unreasonably refused the job offer; (ii) if so, should the EAT have remitted the case.
HELD: (1) The ET had applied the right test when it stated that the reasonableness of a job refusal included factors personal to an employee, Everest's Executors v Cox [1980] I.C.R. 415 applied. However, the ET had failed to address the central point made by R. It had not been unreasonable for R to decline to work in the hospital when she had spent so many years working in the community. The relevance of R's emigration to Canada needed further analysis. If the ET had decided that that was the reason for R's refusal, it had not clearly stated so. R's intention to take advantage of the redundancy payment did not defeat the claim. The ET's analysis had been so inadequate that it amounted to an error of law. (2) Remittal to the ET as the fact finding tribunal was necessary. Whether or not a refusal was reasonable was a matter of fact for the ET, Cambridge & District Cooperative Society v Ruse [1993] I.R.L.R. 156 applied. The EAT's reliance on the reasonable band of responses test was misplaced. It was not useful to import that test, which was the test for unfair dismissal, into a s.141 context, Iceland Frozen Foods Ltd v Jones [1983] I.C.R. 17 considered. When dealing with s.141, a specific judgment had to be made concerning the employee in question; it was not a question of whether the refusal was within the reasonable band of responses. The test in Everest's Executors was clear and had been applied by the ET for many years. The ET had clearly stated the necessary test and there was no reason to cloud Everest's Executors by importing the reasonable band of responses test into s.141 territory.
Appeal allowed.
LTL 7/2/2013
EMPLOYMENT, HEALTH, BAND OF REASONABLE RESPONSES, EMPLOYMENT TRIBUNALS, ERROR OF LAW, NURSES, REDEPLOYMENT.
