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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Irfan v Whittington Hospital NHS Trust [1996] UKEAT 1011_95_2401 (24 January 1996) URL: http://www.bailii.org/uk/cases/UKEAT/1996/1011_95_2401.html Cite as: [1996] UKEAT 1011_95_2401

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BAILII case number: [1996] UKEAT 1011_95_2401

Appeal No. EAT/1011/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24 January 1996

THE HONOURABLE MR JUSTICE TUCKER

MR E HAMMOND OBE

MRS M E SUNDERLAND JP

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MRS J E IRFAN          APPELLANT

WHITTINGTON HOSPITAL NHS TRUST          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant DR IRFAN

(Representative)

On behalf of the Appellant


 


MR JUSTICE TUCKER: This is a Preliminary hearing ex parte of an employee's appeal against the decision of the Industrial Tribunal sitting at London (North) that the Appellant was fairly dismissed on the grounds of redundancy. The hearing took place over six days during the period between 22 November 1994 and 20th July 1995. At the hearing both parties were represented by Counsel. The Appellant had the advantage of being represented by Mr Bowers, who is very experienced in this field. We cannot imagine Mr Bowers being deflected by the Tribunal or being dissuaded by them from advancing any point which he felt proper to do on his client's behalf.

Before us the Appellant has been represented by her husband Dr Irfan. At the time of her dismissal, the Appellant was employed by the Respondent, Whittington Hospital NHS Trust at the Whittington Hospital, as team leader of the surgical services consortium. She had been appointed to that position in March 1991 by a Mr Kidson and Miss Hyde, following a reorganisation of the Patient Services Directorate. About two years later it seemed to those persons that, the structure of seven consortia which they had set up, was not performing as it should have done, and was not meeting the expectations held of it at its inception. So it seemed to them that changes in manning levels and management responsibilities were imperative. A consultation document was prepared by Miss Hyde and issued to all relevant staff. The Tribunal were satisfied on evidence before them, that ample opportunity was given both to the Appellant and the other staff involved, to comment upon the proposals for change. Many of the staff responded to this document, but for reasons best known to herself, the Appellant did not. The Tribunal found, justifiably in our view, that the Appellant failed to give sufficient attention to a warning contained in the document, that radical changes to the middle management structure were envisaged, and that one outcome would be a reduction in management posts involving all disciplines within the management team.

At a later stage when the Appellant came to be interviewed, she apparently did not raise any objections regarding her career development either at those interviews, or on any other occasions which could be recalled. We pick that passage up from a letter dated 3 November 1993 written to the Appellant by Miss Hyde, who was in the position of Director of Operations and Chief Nurse. The final reorganised management structure which emerged from this consultation process, was disclosed to the staff on the 8 September. Again, the Appellant raised no objection or comment to it, and therefore we find difficulty in following some of the grounds of her present appeal, to which we will return.

The Tribunal found that the Appellant was specifically given the opportunity to discuss on an individual basis with Miss Hyde the reasons behind the organisational change and the new structure, but this as they found, was not taken advantage of by the Appellant. The Tribunal were invited by the Appellant's Counsel to accept the view that Miss Hyde held certain incidents against the Appellant and harboured an animosity towards her, which influenced the outcome of the interview board. The Tribunal drew no such inference. Nor did they find that the reorganisation was exploited as a vehicle for getting rid of the Appellant. They found, as they were justified in doing, that this was not a case of a colourable selection in redundancy masking an ulterior motive. That must have been a suggestion that had been put before them. The Tribunal believed that the allegation of bias and bad faith directed as well against Mr Kidson as Miss Hyde, were misconceived and were without foundation. That again answers a number of the allegations contained in the Skeleton Argument read before us. Of course, we must make it plain that we cannot interfere with the Tribunal's findings of fact, save and accept and insofar as they are shown to be perverse findings, which no reasonable Tribunal could make.

The Tribunal found that these categorical accusations of bad faith in the matter of the Appellant's non-appointment and dismissal, were at best a retrospective endeavour by the Appellant as an unsuccessful candidate, to justify to herself why she had not been appointed. There is the Tribunal's finding. The Tribunal saw the witnesses. They heard them give evidence and they heard them being cross-examined. They did so over a period of six days. We cannot substitute our views on the witnesses or their integrity, for those of the Tribunal. The Tribunal found that considerable time and effort was put in by Mrs Tarling and also by Miss Hyde, to seek redeployment for the Appellant within the hospital and outside, and that this was a genuine attempt.

The complaint made to the Tribunal in the Appellant's amended Originating Application was that her dismissal for redundancy was unfair for a number of reasons listed at A-E in the Tribunal's decision. Notably that there was no redundancy situation, or that she was unfairly selected for redundancy, or that there was no adequate consultation, or that the Respondent failed to explain to the Appellant the reasons for departing from its policy, or that the Respondent failed to make any reasonable investigation of the possibility of alternative employment. For their part the Respondents rejected those complaints in its Notice of Appearance. Their grounds for opposing the application were again set out by the Tribunal (numbered 1-5) in paragraph 3 of their decision. These grounds were that there was a redundancy situation but the Appellant was not unfairly selected for redundancy. Efforts were made to find suitable alternative employment for her. That there was no failure in the procedures adopted and that the allegations of malice and bad faith were without foundation.

The Tribunal clearly upheld those grounds in the decision which they reached and to which we have briefly referred. The ultimate conclusion of the Tribunal was as follows:

"(1) That the Applicant was dismissed for redundancy occasioned by the reorganisation of the Patients Services Directorate formalised in September 1993; ...

(2) That there was no failure on the part of the Respondent with regard to its obligation to consult...

(3) That the Respondent's Policy on Staff Affected by Change was fairly and genuinely applied in the Applicant's case. ...

(4) That the Respondent applied itself genuinely and promptly to efforts to seek suitable alternative employment for the Applicant. ...

(5) That the Respondent in handling the redundancy situation did act reasonably in coming to its decision to dismiss the Applicant for redundancy and the criteria of section 57(3) of the Employment Protection (Consolidation) Act 1978 were met..."

The decision of this Tribunal was, if we may so, careful and well reasoned. It was set out in considerable detail in the Tribunal's extended reasons. The Tribunal seemed to us to have directed themselves properly on the law and to have applied it to the facts which they, and they alone, were entitled to find. We have listened to Dr Irfan in the submissions he makes to us based on the Skeleton Argument. The grounds for the Appellant's appeal are first, mis- application of the law and second, perversity of the decision. The grounds were advanced in detail, and we have allowed Dr Irfan to advance them all, though we have sought to remind him that what he has to show is an error in law, or perversity in the decision.

We do not propose to descend into particularities of the allegations set out in the Skeleton Argument. Suffice it to say that it appears to us that it could not possibly be argued here that the Tribunal had mis-applied the law. They did not. They applied the law correctly. Nor does this appeal come within any distance of showing that there is an argument that the Tribunal acted perversely. It could not possibly be said of this Tribunal making the findings it did and which it was entitled to do, that they were perverse in the sense that they reached a decision which no reasonable Tribunal could come to. Accordingly in our view there would be no grounds for allowing this appeal to proceed to a full hearing. Nothing more could be said, than has already been advanced to us. We dismiss the appeal at this stage.