North West London Mental Health NHS Trust v Wilkins [1998] UKEAT 258_98_0309

EAT
North West London Mental Health NHS Trust v Wilkins
[1998] UKEAT 258_98_0309 · 1998-09-03
MR JUSTICE MORISON (PRESIDENT) : This is an appeal against the unanimous decision of an Industrial Tribunal held at London (North) which concluded that the applicant, Dr Wilkins, was employed by the respondents, North West London Mental Health NHS Trust, from 1st April 1993 and was thus entitled to claim a redundancy payment from them.The case relates to the way the NHS was re-organised pursuant to the National Health Service and Community Care Act 1990 .Prior to that re-organisation, the administration of the NHS was divided into Regions and within Regions there were District Health Authorities. The applicant, a Consultant Radiologist, was employed by the North West Thames Regional Health Authority to serve as a Radiologist at three hospitals: Northwick Park, Harrow and Shenley. The first two hospitals were administered by a District Health Authority ["Harrow Health Authority"]; the third was part of the Parkside District Health Authority. He worked for 8/11ths of his time at the first two hospitals and did one session, a half day, at Shenley, which is a hospital for long-stay patients requiring mental health care. Although he was employed by the Regional Health Authority, he was, after 1987, paid by the Harrow Health Authority for whom most of his duties were performed.The objective of the re-organisation was to de-centralise the administration within the NHS and to create a number of autonomous trusts responsible at a more local level for the administration of the particular hospital or hospitals. It was the aim and objective of the statutory scheme to ensure that the re-organisation was not an occasion for breaking the continuity of employment of those involved in it. The 1990 Act was designed to preserve continuity as ss. 6 and 7 of that Act make clear.The applicant's position was somewhat complicated. He worked at three hospitals of which one, Shenley, was to be transferred to a different Trust, namely the respondents, from the other two which were transferred to Northwick Park Hospital NHS Trust. It would have been open, as we see it, for the various entities to agree either that Dr Wilkins should become employed by the Northwick NHS Trust which could continue to pay him for work done at Shenley in the same way that the District Hospital paid him for working at Shenley before the re-organisation; or that he should have two contracts of employment: one with one Trust and the other with the respondents.On 22nd February, the Regional Health Authority, his then employer, wrote to him in connection with the forthcoming re-organisation. He was told that after the change, as from 1st April 1993 he would have two contracts of employment: one from Northwick Park Hospital NHS Trust in relation to 8/11ths and one from the respondents in relation to 1/11th. He was further told that as the 'lead' authority, the Northwick Park Hospital NHS Trust, would hold his personnel file. The letter stated that the change of employer would not affect his contractual conditions of employment and that his employment would be regarded as continuous.On the basis of that letter, Dr Wilkins continued to perform his duties as a Consultant. In due course, Shenley closed its Radiology Service and the question arose as to Dr Wilkins' position. The respondents took the view that he was not employed by them but that rather his services had been provided to them by the other Trust who were his employers. They contended that they were unaware of the letter of offer dated 22nd February and had had no employment relationship with Dr Wilkins since 1993.The Industrial Tribunal's conclusions on this case is to be found at paragraph 14(2) at page 25:
"(2) On 22 February 1993, NWTRHA gave notice to the Applicant that from 1 April 1993 he would be employed under one contract of employment by the Northwick Park & St Mark's NHS Trust in respect of the eight weekly sessions at Northwick Park and that he would be employed under a separate contract of employment with North West London Mental Health NHS Trust (NWL) in respect of his weekly session at Shenley Hospital and that those contracts of employment with the two new Trusts would form part of a joint contract of employment as Consultant in Radiology. On 1 April 1993, the Applicant became an employee of both NHS Trusts in accordance with the terms set out in that letter. The oversight on the part of the NHS Trusts to issue him with written employment contracts does not alter the reality of the employment situation. The Applicant carried on working (performing the same duties) at both hospitals - Northwick Park and Shenley - as before. His pay and conditions remained unaltered. There was a TUPE transfer on 1 April 1993, part of the Applicant's contract of employment (in respect of the eight weekly sessions at Northwick Park) was transferred to Northwick Park & St Mark's NHS Trust and the remaining part of his contract of employment with NWTRHA (in respect of the one weekly session) at Shenley Hospital was transferred to the Respondent (NWL). The Respondent's argument that NWL was not his employees because he had received no notification from NWTRHA is fallacious. By the same logic, Northwick Park could claim that it is not the Applicant's employer."
Before us, the appellants have argued that the essential premise of the tribunal's decision was its finding that a TUPE transfer had taken place. Counsel, Mr Chronias, on their behalf, submitted that no such transfer could have occurred because, on the tribunal's findings, the transferor was the District Health Authority, whereas the employer was the Regional Health Authority. He submitted that for the Regulations to apply the employer and transferor had to be one and the same person.On behalf of Dr Wilkins, Mr Quigley conceded that the Industrial Tribunal were in error in their conclusions on TUPE but that it did not form a central part of their decision. He submitted that there was a transfer either by reference to the 1990 Act or alternatively that the letter of offer was accepted by conduct and he became employed by both Trusts under two separate, but linked contracts.Mr Chronias, on the appellants' behalf, argued that there was no material before the Industrial Tribunal to enable it to conclude that there had been a scheme under s. 6(1)(b) of the Act and, in relation to the alleged offer and acceptance, he pointed out that whilst the Regional Authority may have had power to terminate the existing contract of employment, they could not unilaterally without the consent of the two Trusts transfer that contract to them.It seems to us that Mr Chronias' submissions do not reflect reality. As the Industrial Tribunal pointed out the logic of his position is that after the re-organisation, the applicant was employed by neither Trust. It seems to us that in the context of a re-organisation which was designed to effect changes of employer without affecting the employees' accrued rights it would be right to construe the letter as being an offer, made by the then employer on behalf of the two Trusts, to continue his employment relationship with the Trusts, without affecting his continuity of employment. It is not sufficient for Mr Chronias to assert that there is no evidence that the letter was written on the Trusts' behalf. We think that the reality of the position is that the Regional Health Authority, as the employer of many consultants whose services were to be transferred, were part and parcel of the re-organisation. It seems to us that if the Regional Authority did not have express authority to act on the Trust's behalf, they certainly had ostensible authority to do so. Dr Wilkins worked on the basis of the letter, and on no other basis, from 1st April 1993. As the Industrial Tribunal put it:
"On 1 April the Applicant became an employee of both NHS Trusts in accordance with the terms of that letter."
That is sufficient to dispose of the appeal. But we should add, for the avoidance of doubt, that we are not to be taken as accepting as correct the concession made about the application of TUPE. Further, we should make it clear that, had it been necessary to do so, we would have wished to explore with more care the position under the 1990 Act. We are all of the view that the Industrial Tribunal were correct to conclude that there is nothing in the Act which prevents a consultant from becoming employed under two separate contracts of employment. Indeed, as it appears to us, as at present advised, ss. 6 and 7 expressly contemplate such a situation, where the Regional Health Authority transfers part of a contract to one Trust and retains and then transfers the other part to another trust. Finally, we can foresee some difficult questions in relation to Dr Wilkins' claim with which this appeal has not been concerned.Accordingly, the appeal with be dismissed.