Ballinger v Rotherham General Hospital NHS Trust [1995] UKEAT 809_95_2811

EAT
Ballinger v Rotherham General Hospital NHS Trust
[1995] UKEAT 809_95_2811 · 1995-11-28
MR JUSTICE KEENE : This is a Preliminary Hearing of the appeal, held so that the Appellant may show that there is an arguable point of law, on the basis of which this matter should be allowed to proceed to a full hearing of the appeal. The Appellant, Mrs Ballinger, has claimed unfair dismissal of her by the Respondent. The Industrial Tribunal on 3rd May 1995 held that she had in fact resigned from her employment and had not been dismissed.The Appellant had been employed at Badsley Moor Lane Hospital, Rotherham, on a site specific contract, which had been granted to her on the commencement of her employment with the Respondents back in May 1970. The Respondent, the Rotherham General Hospital NHS Trust, embarked on a major re-structuring of its elderly medicine service involving major capital expenditure. This required a certain amount of reorganisation and deployment of staff. The Respondent proposed that staff on certain occasions should be required to work either at Badsley Moor Lane Hospital or at the Rotherham District General Hospital; those two hospitals being in close proximity. This, according to the Tribunal, was not acceptable to the Appellant, who lodged a formal grievance on 23 July 1994, in accordance with the Respondent's formal grievance procedure. Under that procedure, the status quo is maintained while the procedure is being followed. That was specifically confirmed in relation to the Appellant's own grievance. The Industrial Tribunal found that given the need to implement the new system being embarked upon as soon as possible, the Respondent served upon her notice that her existing contract would terminate with effect from 12 December 1994, but with an offer of immediate re-engagement on a contract which maintained all her existing terms and conditions of employment, except the change to work on two sites if required.The Tribunal found:
"7. ... that if the grievance proved to be successfully resolved in her favour the applicant would remain on her existing single site contract."
She appealed to the Chief Executive of the Respondents, as she was entitled to do under the grievance procedure. That appeal was heard on 8 November 1994. A compromise was put forward by the Respondent whereby this Appellant would normally work at Badsley Moor Lane Hospital, except in unforeseen circumstances that might arise in cases of sickness. According to the Tribunal, that proposed compromise was rejected by the Appellant. The Tribunal also found:
"9. ... that on 25 November 1995 the respondent notified the applicant's representative that her grievance would now be placed before a sub-committee of the Trust Board and until her grievance was resolved her status quo in terms of her previous contract would remain. A meeting of this sub- committee was arranged [to deal with this matter] for 11 January 1995.
10. We find that on 2 December 1994 the applicant telephoned the respondent and stated that she considered that her contract was being terminated on 12 December 1994 and that as she had outstanding holiday to take she would not be returning to work. The applicant did not attend for work at the respondents premises after that date and the tribunal finds that her employment terminated on 12 December 1994."There was then some rather complex discussions and events which took place on 17 December 1994 and 25 January 1995, but in the event the Appellant telephoned the Respondent to say that she continued to regard her contract as terminated, with effect from 12 December 1994.The Industrial Tribunal subsequently concluded that the offer to the Appellant of employment at Badsley Moor Lane Hospital, save in cases of emergency, was a reasonable proposal for the Respondent to implement in the terms of its reorganisation, and total implementation of Phase 111B, and one which the Appellant could reasonably have accepted. They further found:
"14. ... the respondents acted throughout the grievance procedure and in all their dealings with the applicant in a reasonable way and that on 12 December 1994 the respondent did not terminate the employment of the applicant who resigned."
They went on to find that, following the notice which was served on 8 September 1994 on the Appellant and the commencement of the grievance procedure, the Appellant's status quo continued and was still in existence on 12 December 1994, when the Appellant voluntarily resigned her employment with the Respondent. In consequence, the Tribunal unanimously decided that the claim for unfair dismissal failed.The Appellant now contends that the Industrial Tribunal made various errors of fact and that the version of events put forward by the Respondent at the Tribunal was untrue. As one example of that, the Appellant has referred today to the finding of the Tribunal that the Appellant rejected the compromise solution that was put forward on 8 November 1994. The Appellant says that is not right and that she did in fact accept the compromise. Mrs Ballinger clearly feels deeply aggrieved that she should have been treated in the way that she has by the Respondent, particularly given the fact that she was an employee in the Health Service of very long standing.We have explained to her in the course of argument that the role of this Appeal Tribunal is a limited one. We can only deal with errors of law committed by the Industrial Tribunal in the course of reaching its decision. There is of course a procedure, whereby if an Applicant discovers new evidence after an Industrial Tribunal hearing, or if the interests of justice require it, then the Applicant may apply to the Industrial Tribunal itself to review its own decision. It may then reach different findings of fact, or it may not. That procedure has not been used in this case. This Appeal Tribunal is not here to deal with appeals where it is alleged that the Tribunal below made incorrect findings of fact. We are in no position to do that, because unlike the Industrial Tribunal, we do not hear the witnesses and we cannot therefore judge between them.We are bound to say, having given this matter the most careful consideration, that we cannot find any arguable point of law in the matters which have been raised in the papers before us, or orally before us, by Mrs Ballinger. The points which she has raised are all of them issues of fact for the Industrial Tribunal to decide and not for us to determine. In those circumstances, we have no alternative but to dismiss this appeal.