Shevlin v Coventry Free Church Homes For The Aged [1993] UKEAT 403_90_2604

EAT
Shevlin v Coventry Free Church Homes For The Aged
[1993] UKEAT 403_90_2604 · 1993-04-26
HIS HONOUR JUDGE J PEPPITT QC On 20th April 1990 the Birmingham Industrial Tribunal unanimously rejected a complaint by Mrs B J Shevlin that she had been unfairly dismissed by her employers, the Coventry Free Church Home for the Aged. The Tribunal held that Mrs Shevlin had been constructively dismissed but that her dismissal was nevertheless fair, her employers in so dismissing her `having acted reasonably within the meaning of S.57(3) of the Employment Protection (Consolidation) Act 1978'. Mrs Shevlin now appeals against that decision.The facts can be stated shortly. Mrs Shevlin was employed by the Respondents as deputy matron of their home for the aged at St Andrews House, Coventry. She had been employed by the Respondents since November 1983, until 1985 as assistant matron.The Respondents are a charity. Their main source of income is by donations from the Coventry Free Churches. They have a board of governors and an administrator, Mr R W Scarth.St Andrews House has accommodation for 25 elderly residents and a staff of 16, the majority of whom work part-time. The three senior members of staff were the matron, Mrs Shevlin the deputy matron and an assistant matron, Mrs Logan. All were full time employees.In September 1989 after discussions with the County Social Services the Respondents decided upon radical changes in their senior staff. The residents were living longer and to cope with their increased frailty the Respondents sought to restructure their management so as to absorb the consequential extra workload. In Mrs Shevlin's case her new job description required her to undertake additional responsibility for the day-to-day running of the Home and from time-to-time she would be on call at night for which she was to receive a `sleep-in' allowance of £1,320 p.a. Her post was to be renamed 'floor supervisor'. The Tribunal found that:
"... By the re-organisation in the management structure the respondent was in effect down-grading the applicant's status. It was not just a change in job description. From being No.2 in the organisation she was to become very much involved in the day-to-day running of the home. We are satisfied that that was an attempt by the employer unilaterally to change a fundamental term of her contract of employment."
Mrs Shevlin was not consulted by the Respondents before the redeployment decision was taken. On 18th September 1989 Mr Scarth presented her and Mrs Logan with a document setting out their new responsibilities. They were given a week to think things over. Both objected to their new title of 'floor supervisor' and this the Respondents subsequently agreed to change to 'care supervisor'. But when they met Mr Scarth again on 25th September both rejected the new terms of employment. Mrs Logan resigned on 27th September and Mrs Shevlin on 16th October. There was a meeting between Mrs Shevlin and the governors on 23rd October followed by a letter from Mr Scarth dated 28th October but neither dissuaded Mrs Shevlin from her decision to resign and she left finally on 13th November.It was against this background that the Tribunal's finding of constructive dismissal was made. The Tribunal implicitly found that the reason for the dismissal 'some other substantial reason' within the meaning of S.57(1)(b) of the Act. No argument was addressed to us to suggest that either finding was unjustified.The argument before us centred upon S.57(3) of the Act. In approaching that subsection the Tribunal had regard to Savoia v. Chiltern Herb Farms Ltd [1982] IRLR 166 and Berriman v. Delabole State Ltd [1985] 546. There was set out in the decision a paragraph from the judgment of Browne-Wilkinson J in Berriman which stressed the need under S.57(1) of the Act for employers to show the reason or principal reason for the dismissal even in cases where that dismissal was constructive. The passage which the Tribunal cited ended as follows:
"It is the employer's reasons for their conduct not the employee's reaction to that conduct which is important'.
The Tribunal's findings under S.57(3) appear in the decision immediately after this passage. They read as follows:We have applied that reasoning to this case. This is a small employer. It was top-heavy in management. Restructuring would absorb any extra workload carried by the increasing age and frailty of the residents by spreading it amongst the senior staff. The governors were perfectly reasonable in that proposition. They were acting to preserve the viability of their undertaking. Accordingly we are satisfied that although the applicant was undoubtedly dismissed that dismissal was not unfair since the employer was acting reasonably within the meaning of section 57(3)".Mr Vokes on behalf of Mrs Shevlin pointed to this passage in the decision and submitted that in considering reasonableness under S.57(3) the Tribunal looked at the dismissal only from the viewpoint of the Respondents. He relied in particular on the presence of the word 'accordingly' after the Tribunal's recitation of those factors which justified the dismissal in the Respondents' interests and immediately before the Tribunal's conclusion. He referred us to obiter dicta in Logabax Ltd v. R U Titherley [1977] IRLR 97 to the effect that in the case of a constructive dismissal there was a heavy burden of proof upon the employer to show that the dismissal was fair. It was incumbent upon the Tribunal, he said, to consider the interests of the employee as well as those of the employer when deciding whether the employer had discharged the burden of proving that he had acted reasonably under S.57(3) of the Act. This the Tribunal had failed to do.Notwithstanding Mr Scuplak's argument on behalf of the Respondents that there were findings in the decision relating to the interests of Mrs Shevlin which the Tribunal could have taken into account in arriving at its conclusion that the requirements of S.57(3) were satisfied, we feel that there is substance in Mr Vokes' submissions. It is clear that in determining whether the Respondents acted reasonably under S.57(3) of the Act `in accordance with equity and the substantial merits of the case' the Tribunal was required to consider the dismissal from the viewpoint of both parties. But there is no indication in the decision that in considering reasonableness under S.57(3) the Tribunal took into account any circumstances other than those affecting the interests of the Respondents. They may have done so without stating expressly what circumstances affecting Mrs Shevlin they had in mind. Or they may have been misled by the passage cited in the decision from the judgment of Browne-Wilkinson J into thinking that in cases of constructive dismissal only the employer's reasons for their conduct fell to be considered under S.57(3). We simply do not know. We are unanimously of the view therefore that this case should be remitted to the Tribunal to enable it to give further consideration to the question of reasonableness under S.57(3) of the Act having regard to the indications which we have sought to give in this judgment.