The claimant, a nurse since 1983, succeeded with her claim of constructive unfair dismissal and was awarded a basic award based on her total service working as a nurse in the NHS, despite only working with the respondent since 2006. The Tribunal considered the claimant's statement of employment particulars, which said that continuous service within the NHS started in 1983 for the purposes of certain benefits but the date statutory continuous employment started with the respondent was 2006. The Tribunal was satisfied that on the balance of probabilities the claimant's basic award should be calculated on her total NHS service. The respondent appealed, saying that the ET failed to apply section 218, which provided that, only for certain types of employment within the health service, a change in employer does not break the continuity of the period of employment. The claimant's role did not fall into the category of employment described in s218 and so the ET had erred by ruling that she did not have a break in continuity of employment.

The EAT ruled that the ET fell into error by dealing loosely with the concept of NHS service. Far more was required than merely saying that the claimant worked for the NHS. There was a world of difference between recognising certain benefits based on service to be continued with a new employer and injecting years into the statutory construct of continuous service.

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Appeal No. UKEAT/0048/11/LA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24 June 2011

Before

HIS HONOUR JUDGE McMULLEN QC, BARONESS DRAKE OF SHENE, MR S YEBOAH

WINCHESTER AND EASTLEIGH HEALTHCARE NHS TRUST (APPELLANT)

MRS J M WALKER (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MISS NADIA MOTRAGHI (of Counsel)

Instructed by:
Beachcroft LLP Solicitors
Portwall Place
Portwall Lane
Portwall
Bristol
BS99 7UD

For the Respondent

MISS HEATHER PLATT (of Counsel)

Instructed by:
Barker Son & Isherwood LLP
32 High Street
Andover
SP10 1NT

**SUMMARY**

UNFAIR DISMISSAL – Compensation

PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke

The successful Claimant worked in the NHS from 1983 but for the Respondent Trust only from 2006. The dispute about this was raised in submissions on the basic award. The Employment Tribunal calculated back to 1983. The EAT allowed the jurisdictional point about Employment Rights Act 1996 s 218(8) to be raised and upheld the Trust's appeal. Continuity does not arise in the NHS unless s 218, or TUPE, applies.

**HIS HONOUR JUDGE McMULLEN QC**

1. This case is about the calculation of a basic award on a finding of unfair dismissal. It is the Judgment of the court to which all members appointed by statute for their diverse specialist experience have contributed. We will refer to the parties as the Claimant and the Respondent.

**Introduction**

1. It is an appeal by the Respondent in those proceedings against part of a Judgment of an Employment Tribunal sitting over six days, including time in chambers, at Southampton, under the chairmanship of Employment Judge Scott. The Judgment runs to 37 pages, and Reasons for it were given on 3 November 2010. The parties are represented respectively by Miss Heather Platt and by Miss Nadia Motraghi, both of counsel.

1. The essential issue on appeal could not be narrower, for it emerges from the findings by the Tribunal that the Claimant's claim of constructive unfair dismissal and unlawful direct sex discrimination succeeded and a number of her claims were dismissed. Claims under the Maternity and Parental Leave Regulations (MAPLE) also succeeded, as did the claim for breach of contract, as a result of which the total award for compensation was £36,907, which included a ten per cent uplift on certain features pursuant to the Employment Act 2002. The Claimant, we are told, made roughly 25 claims, and she has substantially succeeded on several. The issue in the case concerns the basic award. The basic award is made as a requirement of an award of unfair dismissal by section 119 of the Employment Rights Act 1996.

1. In practical terms the dispute between the parties hinges upon continuity of employment. The Claimant contends she was employed with continuous service from 1983, the Respondent says from 2006, and the difference between the parties is £6,475. The Claimant contends the basic award is £7,525, and the Respondent £1,050, and so there is a very significant difference in the figures. Directions sending this appeal were given in chambers by HHJ Serota QC.

**The legislation**

1. The provisions of the legislation are not in dispute. On a finding of unfair dismissal, an Employment Tribunal must make a basic award, and must do so by calculating it in a rigid statutory manner prescribed by section 119. Broadly speaking, the basic award reflects the Claimant's age, length of continuous service and pay, but all of those are defined by the statute in artificial ways so that pay is not everything the Claimant receives and it is capped. Age is not absolute but is reflected in the age at which the work was done, and the multiplier of pay depends on it being calculated at 50 per cent, 100 per cent, or 150 per cent. This is contrasted with the approach to a compensatory award, which is entirely discretionary based on the principle of what is just and equitable, subject to reductions which must be made if there are findings of, for example, contributory fault. Thus a Tribunal must approach the calculation of the basic and the compensatory awards in different ways. Generally speaking, when a decision is made to reduce the compensation because of the conduct of the Claimant, the reductions will be of the same percentage. But, as we have indicated, the basic award is a statutory construct, and a Tribunal is under a duty to calculate the basic award in accordance with section 119 and not otherwise.

1. The formula for a week's pay is set out in chapter 2 at section 229 and following. Continuity of employment again is a statutory construct and is regulated by part XIV. In the special case of employment by a number of different employers, section 218 provides for certain previous employment to be included:

"(8) If a person employed in relevant employment by a health service employer is taken into relevant employment by another such employer, his period of employment at the time of the change of employer counts as a period of employment with the second employer and the change does not break the continuity of the period of employment.

(9) For the purposes of subsection (8) employment is relevant employment if it is employment of a description—

(a) in which persons are engaged while undergoing professional training which involves their being employed successively by a number of different health service employers, and

(b) which is specified in an order made by the Secretary of State."

1. Regulations which are said to be analogous to those under section 218 have been made. These are the Employment Protection National Health Service Order 1996/638, which says the following:

"Specified descriptions of employment: The following descriptions of employment are hereby specified for the purposes of [the relevant statute]."

and there are there given the categories of employee which include medical practitioners, scientist trainees and management trainees.

**The facts**

1. It is common ground that the Claimant was a nurse; that is the finding of the Tribunal, and, at least stripped of the controversial matter of the employer, the finding that she was employed as a nurse from 1983 is one which is not challenged. The Claimant was constructively unfairly dismissed and was entitled to a basic award. The contractual material relating to her employment by the Respondent indicates the following:

"Contract Start Date and Continuity of Service

Part B of this Contract confirms your start date in this post and the date upon which your present employment with the Trust began, which is your commencement date for statutory purposes. The date your continuous employment within the NHS began may be different and this will be taken into consideration for the calculation of certain benefits including annual leave, sick leave and maternity leave entitlement. In addition aggregate service within the NHS (by which is meant any employment with an NHS body) may be taken into consideration for the calculation of certain benefits. Entitlement to enhanced benefits will be subject to verification of previous service by the Trust. Further detail is available from the Human Resources department."

1. There is a reference to continuation of service in paragraph 14 of the particulars, but these take the matter no further since they are essentially forward looking. The document was signed by the Claimant as a contract on 6 November 2006 with a signature by the Respondent a little earlier. Particulars attached to it in part B reiterated the point about employment and the date is there specified as:

"Date of commencement in this post: 2 October 2006 [...]. Date statutory continuous employment with Winchester and Eastleigh NHS Trust commenced: 2 October 2006."

1. It is common ground before us that at no time prior to 2 October 2006 was the Claimant employed by Winchester, the Respondent. The question of her length of employment was raised by the Claimant in one of the two claim forms she raised, where she said the date of commencement was 1983. In her detailed grounds she asserted the following:

"The Claimant's employment with the Respondent commenced in September 1983 and she has held her current position since October 2006 […]."

1. The Respondent's response to this was that she was employed in 2006. Apparently, she was not cross examined when she gave her evidence in accordance with her witness statement. The witness statement said this: "I have been employed by the NHS since September 1983 and I started working in Andover Hospital in October 2006." The material available to the Employment Tribunal consisted of nothing more than the documents we have referred to. We have seen in the hearing bundle index of the Employment Tribunal a passage on contractual documentation, policies and procedure, none of which pre dates 2 October 2006.

1. The Employment Tribunal heard evidence over three days and sought closing submissions from both counsel in writing. Miss Motraghi made the point about the dispute over start dates. It was submitted the Claimant's basic award is to be calculated on the basis of her length of service with the Respondent, not her length of service in various NHS employment. Thus the matter was flagged for the Tribunal's decision, as to which it said this:

"Pursuant to Section 119 Employment Rights Act 1996 the claimant is entitled to a basic award calculated with reference to her age at the date of dismissal and her length of service. It was suggested on behalf of the respondent that the claimant's length of service ran only from October 2006 when she started working at Andover Hospital. She has been employed by the National Health Service, however, since September 1983 and contends that her continuous service began on that date. Her evidence in chief to that effect was not contested in cross examination. Her statement of employment particulars (R77A) refers in paragraph 3 to continuous employment within the NHS for the purpose of calculating 'certain benefits'. The statement of particulars relating to her current job in the NHS (R287) refers to 'commencement of continuous NHS Service'. The Tribunal is satisfied that on the balance of probabilities the claimant's basic award should be calculated on her total NHS service ie 26 years. The claimant was aged 44 at the date of dismissal. She is therefore entitled to a basic award of 21 and a half weeks' pay subject to the statutory maximum of £350 per week. The basic award amounts to £7,525."

**The Respondent's case**

1. The Respondent contends that the Tribunal failed to apply section 218. It cannot be criticised for doing that, for neither counsel raised the point, but Miss Motraghi contends that the central dispute between the parties was live before it and the Tribunal made a decision upon it. If this is a new point, she contends it is a hard edged question of law which should be determined by us, since it goes to matters as fundamental as the statutory construction of a basic award. In any event, the Tribunal's Judgment was perverse. In order to make this submission she draws attention to the contractual documents to which we have referred, which she says go all one way, and there is no reason for those documents not to mean what they say.

**The Claimant's case**

1. On behalf of the Claimant, objection is taken to the raising of what is said to be the new point. Although the dispute as to the competing dates was live before the Tribunal, the particular argument based upon section 218 and the Regulations was not put, and the EAT should not entertain it. As to the documentation point, which is said to be perverse, Miss Platt contends that the Tribunal heard evidence from the Claimant about her employment, and that goes with the contractual documentation; it was open to the Tribunal to make the decision which it did.

**The legal principles**

1. The legal principles applicable to the opening of a new point were set out in a Judgment I gave in Secretary of State for Health v Rance [2007] IRLR 665, reassuringly relied on by both counsel, in paragraphs 48 50. A new point will not normally be entertained on appeal if it requires new evidence to be sought, but sometimes a hard edged question of law, a construction of a statute and so on can be dealt with as an exceptional case. Cases sometimes are allowed, but more frequently refused (see Blackpool, Fylde and Wyre Society for the Blind v Begg. The test for a perversity appeal requires an overwhelming case to be made (see the eponymous Yeboah v Crofton.

**Discussion and conclusions**

1. With those principles in mind we prefer the argument of Miss Motraghi. The first point is that this issue was raised at the Employment Tribunal, albeit not by reference to the statute. This may be a surprising omission, given that both counsel were engaged there; but on the other hand, as Miss Motraghi fairly points out, this was a complicated case involving a lot of different claims, and it must be borne in mind that dealing with remedy and particular parts of remedies for this group of statutory torts would be the very last thing in anybody's mind. The Claimant had the requisite service to make the claims, and Miss Motraghi did flag up the dispute as to the dates. It is common ground before us that the Claimant did not work for the Respondent before 2006. So the issue is, how did previous employment come to be part of the finding?

1. In our judgment, this is not a new point, since the substance of it was live. But if we are wrong about that, we are asked to make a decision on a question of law. There are only two ways in which the Claimant could obtain the benefit of her employment by NHS bodies up to 2006: the first is by TUPE 1981 or 2006, which plainly does not apply here; the other is to invoke section 218.

1. This is doomed to failure. We have attempted to take a realistic approach to this and to ask what evidence might be available for the Claimant. On the unchallenged finding of the Tribunal that the Claimant was employed as a nurse since 1983 she cannot be described as a trainee scientist, medical practitioner and so on, and would fall at the first hurdle. Whether or not any of the bodies within the NHS that she worked for would be specified is an open question, but she never gets past the first hurdle as a matter of construction.

1. That is the hard edged question of law which has to be addressed; it is appropriate to address it here. We have no indication as to what evidence would be brought before the Tribunal. We have been told that in correspondence the Claimant has accepted that she never worked for Winchester before October 2006; and since she was a nurse we hold that she would not be able to invoke the statute.

1. The Tribunal fell into error by dealing loosely with the concept of NHS service. Both the Respondent and the Claimant are right in that the Claimant did work in the NHS, but far more is required when addressing a statutory construct such as basic award and continuity of service than that rather general approach. The Trust is required to make payment of a basic award which corresponds to the time she worked for it and for no one else. The Tribunal wrongly, in its paragraph 116, did not take an analytic approach to the period of employment in the NHS.

1. It also appears to have been led into that error by considering the circumstances which attended upon the dismissal of the Claimant. She obtained work as a bank nurse at Basingstoke Hospital on 1 September 2009 after a gap of some months, and it was indicated that the date of commencement of her continuous NHS service would be confirmed by her previous employer. That appears to have led the Tribunal into error; it cites this document. We allow the point to be raised with us, and it succeeds.

1. If we are wrong about the exercise of that discretion we look at the contractual documents. It would require very compelling evidence by the Claimant to show that she was employed for the purposes of continuity of service by the Respondent before 2006. All the documents that she produced are wholly understandable. For certain purposes an employee is entitled to treat employment by a former employer as counting. Frequently, for example, in local government service and here in the NHS credit is given for the purposes of certain benefits, but these are expressly itemised in the contract (annual leave, sick leave, maternity and so on; and, it may be said, pensions). There is a world of difference between recognising certain benefits based on service to be continued with a new employer and injecting years into the statutory construct of continuous service. This simply cannot be done by parties to a contract, since it is a matter of statute, and this contract is in no way misleading. One cannot see more clearly the intention of the parties, which was to recognise the commencement date with this particular employer as 2006. There was no evidence to gainsay the agreement which the parties had made and to which the Tribunal was bound to give effect. So, irrespective of our approach to the new statutory point, we would allow the appeal on the second ground. The appeal is allowed.

1. On agreement between the parties, in substitution for the figure given by the Employment Tribunal of a basic award, there will now be a basic award of £1,050, to which an uplift will be given of £105.