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05/09/2011

Winchester & Eastleigh Healthcare NHS Trust v. J M Walker

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Employment Appeal Tribunal

The appellant NHS trust appealed against the amount of a basic award made to the respondent (W) by an employment tribunal. It was accepted that W had been employed by the NHS from 1983. She was later employed by the respondent trust, with a contractual commencement date of October 2006. W later began proceedings against the trust alleging constructive unfair dismissal. That claim was successful and so the tribunal had to make a basic award, pursuant to the Employment Rights Act 1996 s.119. W had sought an award on the basis that she had been employed with continuous service from 1983, whilst the trust had said that she was employed in 2006. The tribunal calculated the award on the basis of W's total NHS service, from 1983. The trust submitted that the tribunal failed to apply s.218 of the Act. It further argued that the tribunal's decision was perverse, considering the contractual material. W contended that the s.218 point could not be raised as it was a new point, not raised before the tribunal.
 
HELD: (1) The continuous service point was raised before the tribunal, although not by reference to the Act (see para.16 of judgment). (2) The Employment Protection (National Health Service) Order 1996 was said to be analogous to s.218 of the Act and it referred to three categories of employees, which included medical practitioners, scientist trainees and management trainees. On the tribunal's finding that W was employed as a nurse since 1983, she could not be described as falling within one of those categories and so fell at the first hurdle under s.218. W had apparently accepted that she never worked for the respondent trust before October 2006; and as she was a nurse she would not be able to invoke the Act. She worked in the NHS, but far more was required when addressing a statutory construct such as basic award and continuity of service than that rather general approach. The trust was required to pay a basic award which corresponded to the time she worked for it and for no one else. The tribunal, wrongly, did not take an analytical approach to her period of employment in the NHS. It also erred in considering the circumstances which attended upon W's dismissal (paras 7, 18-21). (3) There was also no evidence to gainsay the agreement which W and the trust had made and to which the tribunal was bound to give effect (para.22).
 
Appeal allowed

LTL 5/9/2011
NHS,NURSE,RESPONDENT,EMPLOYMENT RIGHTS ACT 1996 s.218,UNFAIR DISMISSAL

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