MR E NENJI v BIRMINGHAM CHILDRENS HOSPITAL NHS TRUST [1999] UKEAT 184_99_3006

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 184_99_3006

Case No Appeal No. EAT/184/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR E NENJIAPPELLANT

BIRMINGHAM CHILDRENS HOSPITAL NHS TRUSTRESPONDENT

Before

Mr Justice Charles Mr J R Crosby

Lord Davies of Coity

Date 30 June 1999

[1]APPEARANCES For the Appellant MR ADEEKO (Representative) MR JUSTICE CHARLES : This appeal comes before us by way of preliminary hearing at which it is our function to consider whether or not the appeal raises reasonably arguable points of law. The parties to the appeal are a Dr Nenji and the Birmingham Children's Hospital NHS Trust. The appeal is against a decision of the Employment Tribunal, the Extended Reasons for which were sent to the parties on 1 December 1998 and the decision was a unanimous one by which the Tribunal determined, as a preliminary issue, that the Applicant had been employed by the Respondent from 15 July 1996 until 7 November 1997 and in consequence the Tribunal did not have jurisdiction to consider the Applicant's claim for unfair dismissal.

[2]The Notice of Appeal raises 18 grounds of appeal. It is supported by an affidavit sworn by the Appellant which relates to the grounds in the Notice alleging bias and/or procedural unfairness. The Chairman of the Employment Tribunal has commented on that affidavit in a letter dated 25 February 1999.

[3]The Notice of Appeal has been supported by a written argument which goes through each of the 18 grounds of appeal and adds supporting arguments. That document is 42 pages long. That document has been spoken to today by a friend and representative of Dr Nenji. With all respect to him, in our judgment that document rather than clarifying the issues and grounds of appeal does much to obscure them.

[4]It is important in our judgment to consider the findings of the Employment Tribunal and in particular the relevant dates relating to their findings. The main findings of the Employment Tribunal are as follows:(1) The Appellant was employed by University NHS Trust from 1 April 1996 to the end of June 1996 and this employment commenced as a consequence of the setting up of that NHS Trust and thus a transfer of employees. We comment that that finding is supported by a letter in the bundle before us.

(2) During that period (i.e. 1 April 1996 to end of June 1996) and before it the Appellant was not employed by the Respondent, the Children's NHS Trust. It follows that the Employment Tribunal rejected the Appellant's claim that he was so employed pursuant to a conversation he alleges took place in November 1995. That was an issue of fact.

(3) The Appellant was employed by the Respondent, the Children's NHS Trust, from 15 July 1996.

(4) That leaves a gap between the end of June 1996 to 15 July 1996 which is dealt with in paragraph 3(8) of the Extended Reasons. Thereafter this gap is not relied on in the reasoning of the Employment Tribunal in rejecting the Appellant's assertion that he was entitled to continuity of employment under the order to which I will now refer.

(5) The Tribunal go on to consider the Employment Protection (Continuity of Employment of National Health Service Employees) (Modification) Order 1996 ("the 1996 Order") to see whether it gives the Appellant continuity of employment. They deal with this in paragraphs 3 (9) (10) and (11) of their Extended Reasons:

"3 (9) However, it is not sufficient to dispose of Mr Nenji's claim to have found that his employment began on 15 July 1996 and that, on the face of it, his employment therefore terminated in November 1997 after less than 2 years continuous service. By virtue of the Employment Protection (Continuity of Employment of National Health Service Employees) (Modification) Order 1996 ('the 1996 Order') if Mr Nenji could show that he was a prescribed person within the meaning of section 1(2)(a) of the 1996 Order then, by virtue of section 4, employment under a National Health Service Trust as defined which constituted 'relevant employment' would not suffer a break in continuity as a result of a transfer from one such employer to another such employer. For the purposes of the 1996 Order, Mr Nenji would have to show that he was a Registrar or Senior Registrar (in his case) who was undergoing professional training which involved him being employed successively by a number of different Health Service employers. This would involve the employment prior to the transfer meeting the definition of the 1996 Order and the employment after the transfer also. (10) The applicant contended that there were various documents after he had started with the Children's Trust which identified him as a Registrar and which therefore gave him the benefit of the 1996 Order for the purposes of continuity of employment. However, the tribunal noted that when the Training Committee met on 15 April 1997 and discussed the arrangements for the various trainees in the West Midlands Region, Mr Nenji was identified as working as a Locum Visiting Registrar at the Children's Hospital and he was specifically referred to as holding a funded post which was 'so far non-SAC approved' ie. the Specialist Advisory Committee had not yet made their visit to say that they gave training approval for the post. Without training approval for the post the applicant would not be in relevant employment because he would not be undergoing professional training as defined by Clause 1(2)(a) of the 1996 Order. The tribunal were quite satisfied on the evidence that the Specialist Advisory Committee had not yet given their approval at the time of the applicant's appointment to the post on 15 July 1996 and that therefore he could not claim the benefit of the 1996 Order within the new post. (11) The tribunal does not at this stage make any finding with regard to the previous posts in respect of which there is a large amount of contradictory evidence as to the status that Mr Nenji enjoyed and whether or not it would have amounted to relevant employment within the meaning of the 1996 Order."

[5]It is apparent from those paragraphs, and the conclusions at paragraph 5 of the Extended Reasons, that the basis of the decision of the Employment Tribunal is a narrow one, namely that the Appellant's employment with the Respondent NHS Trust (which commenced on 15 July) did not qualify under the 1996 Order because he was not undergoing professional training.

[6]In reaching that conclusion the Tribunal do not link it to the Appellant's job description and thus to the competing assertions of the parties as to that, namely that the Appellant was saying that he was employed and described as a Registrar, whereas the Respondents were saying he was a Locum. Rather the reason given by the Tribunal in paragraph 3(10) is that training approval for the Appellant's post had not been given.

[7]Paragraph 3(11) of the Extended Reasons shows that the issues raised in the Notice of Appeal and skeleton argument (and, as we understand it, before the Employment Tribunal), concerning the Appellant's employment by other NHS Trusts (or bodies) before his employment by the Respondent NHS Trust which commenced on 15 July, was not a matter determined or relied on by the Tribunal. As we understand it, the reason for this was that once the Employment Tribunal had rejected the assertion of the Appellant that he was employed by the Respondent NHS Trust in, and from, November 1995 (which would have given him the two years of employment qualification to make a claim)(i) to satisfy the two year requirement the Appellant had to rely on the 1996 Order, and

(ii) the reason the Employment Tribunal held that he failed to do so was that his new employment with the Respondent NHS Trust did not qualify under the 1996 Order.

(a) and 4, which are in the following terms:

"1(2)(a) 'relevant employment' is employment by a health service employer as a medical practitioner or dental practitioner in the grade of Registrar, Senior Registrar, Specialist Registrar, Registrar (Public Health), Senior Registrar (Public Health) or Specialist Registrar (Public Health) while undergoing professional training which involves that person being employed successively by a number of different health service employers; 4. The modification referred to in article 3 is as follows:- If a prescribed 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 shall count as a period of employment with the second-mentioned employer and the change of employer shall not break the continuity of the period of employment."

[8]It seems to us (and it is only a preliminary view on a preliminary hearing) that it is arguable that paragraph 4 requires one employment to follow immediately upon another. As to that this was not a point that is gone into in the Extended Reasons and it is not a point on which the Employment Tribunal rely in reaching their conclusions. However, as we have said, at paragraph 3(8) of their Extended Reasons they do reach findings as to the position that existed between the 1st and the 15th July.

[9]Returning to the reasons of the Employment Tribunal, in our judgment the crucial point that arises for consideration on this appeal is whether or not, in his employment with the Respondent NHS Trust, which commenced on 15 July 1996, Mr Nenji was in relevant employment as that expression is defined by the 1996 Order. As to that the essential conclusion and reasoning of the Employment Tribunal (and again I quote from the Extended Reasons) is as follows:

"3(10) Without training approval for the post the applicant would not be in relevant employment because he would not be undergoing professional training as defined by Clause 1(2)(a) of the 1996 Order." (Earlier in that paragraph reference had been made to a Training Committee meeting on 15 April 1997) and, "5(1) The tribunal went on to consider whether the applicant could claim that he had continuity of service by virtue of the provisions of the 1996 Order. For the reasons given above, the tribunal concluded that whatever status the applicant may have enjoyed prior to the commencement of his contract of employment with the respondent, that final contract was not a contract for training which met the specific requirements of approval by the Special Advisory Committee. In consequence it did not amount to 'relevant employment' within the meaning of clause 1(2)(a) of the 1996 Order and thus the applicant could not take advantage of the provisions of clause 4."

[10]It seems to us that, as a matter of construction of the 1996 Order, there is a reasonably arguable point of law as to whether that conclusion is correct. Put in other language in our judgment, it is reasonably arguable that the fact that approval had not been obtained from the special Advisory Committee does not have the consequence that Mr Nenji was not undergoing professional training in his work with, and for, the Respondent NHS Trust. In this respect we also refer briefly to some of the documents.

[11]First, the document dated 15 April 1997 which is a document specifically referred to in paragraph 3(10) of the Extended Reasons. That is to be found at pages 132 and 133 of our bundle and at page 133 in respect of the Children's Hospital, it contains the following passage:

"E.Nenji (Locum Visiting Registrar) Essentially the system includes 6 NTN Specialist Registrars, with Mr Nenji currently holding a funded so far non-SAC approved post. Awaiting decision following 26th March SAC visit."

[12]That document falls to be contrasted with a letter dated 18 July 1995 which is at page 192 of our bundle which refers to Mr Nenji, and says:

"This post has educational (SAC) approval but manpower approval is awaited" and refers to him as a "

Visiting Registrar". That relates to a period before Mr Nenji was employed by the Respondent NHS Trust. But when one then goes to pages 102, 103 and 104 of the bundle before us, the letters at pages 103 and 104 are addressed to Mr Nenji and refer to him taking part in a visit by the SAC concerning the inspection of the training programme and, for example, in the letter dated 17 March 1997 (i.e. after the start of his employment by the Respondent NHS Trust) written by Mr Hockley, Mr Nenji is asked to make sure that he brings his up-to-date log book, completed RITA form and, if possible, his CV. As we understand it his RITA form is a training specimen form.

[13]Additionally, the document at page 102 which is dated January 1997 and is a study leave request for Senior Registrars signed both by Mr Hockley and by Mr Nenji is relevant because by it Mr Nenji is asking (amongst other things) for a period of leave to provide study time for a fellowship examination.

[14]In addition ground 14 of the Appellant's Notice refers to evidence as to the professional training which was being undertaken by Mr Nenji during the period of his employment with the Respondent employers.

[15]Given those points, in our judgment, there is a reasonably arguable point that in addition to the point of construction I have referred to already, namely whether the lack of the training approval referred to has the result that the order is not satisfied, there are the additional points that either the conclusion reached in 3(10) and 5(1) is contrary to documentary evidence and thus arguably perverse, or is not fully explained. In round terms those grounds are included within grounds 1 and 14 of the Notice of Appeal. It is on those grounds, and those grounds only, that we have concluded there is a reasonably arguable point of law and we allow grounds 1 and 14 to proceed on that basis.

[16]Ground 1 is actually put as to the issue whether the Applicant was employed by the Respondent as a Locum or as a Registrar but includes points I have referred to above. As to the description or nature of the employment, as we read the Extended Reasons, there was no finding by the Tribunal on that point and, as we have said, the relevant point in our judgment is the one which is focused on the reason actually given by the Tribunal.

[17]In addition to that, in our judgment, an issue should be before the Tribunal that hears the appeal as to whether the gap in employment identified in paragraph 3(8) of the Extended Reasons has the consequence that, whether or not the new employment was relevant employment as defined by the 1996 Order, that Order nonetheless does not apply in this case to give continuity of employment. That is a matter of construction of the Order, which it seems to us proper for the Employment Appeal Tribunal to consider when dealing with this appeal, if they were to find that the Appellant has good arguments as to the reasoning contained in paragraphs 3(10) and 5(1). In our judgment and, of course, it is a preliminary view at this stage, that point could well affect whether or not this matter needed to be remitted to an Employment Tribunal.

[18]I shall now turn briefly to the other grounds of appeal. Ground 2: The Tribunal erred in law in failing to consider and apply Part I of the Employment Rights Act 1996, ... to the determination of issues in dispute between the parties in this case."

[19]In our judgment this does not give rise to any reasonably arguable point of law. The remedies for failure to comply with Part I are found in sections 11 and 12 and, in our judgment, this point takes one nowhere in this case.

[20]As a general point, in respect of this and a number of the other arguments advanced in the Notice of Appeal, it is to be remembered that the decision of the Employment Tribunal is narrowly focused and therefore the subject matter of an appeal can be narrowly focused in the way which we hope we have described.

[21]Ground 3 is a point raised on estoppel. In our judgment this raises no reasonably arguable point of law on this appeal. It goes back to, and completely overlaps with, the factual dispute as to the terms of Mr Nenji's employment and we repeat that that does not form part of the essential reason of the Employment Tribunal in reaching their conclusion. Ground 4:

"The Tribunal erred in law in finding contrary to an applicable law that the applicant worked at the respondent from 1 November 1995 merely because 'It was common for doctors to carry out duties at more than one hospital and for those hospitals to be owned by separate trusts. In those circumstances, the normal procedure which applied was that the services of the doctor concerned would be charged by the trust which employed him as a service to the other trust which had the benefit of his services'."

[22]We confess we have difficulty in following this because, so far as we are aware, the Tribunal did not decide that the Applicant worked at the Respondent from 1 November 1995. It found that his employment by the Respondent was from a date in July 1996 and it may be that this ground is part of the argument based on the establishment orders or the alleged discussion in November 1995 that the Appellant was employed by the Respondent NHS Trust from November 1995. In any event, we can see nothing in this ground which gives rise to a reasonably arguable point of law that is relevant to the points that arise on this appeal. In this context(i) paragraph 3(11) of the Extended Reasons is important because in that paragraph the Employment Tribunal make it clear that they are not going into the position as to the status of Mr Nenji's employment prior to his employment by the Respondent in July 1996, and

(ii) we cannot discern any arguable point of law against the conclusions of the Employment Tribunal that the Appellant was employed by the University NHS Trust from 1 April 1996 to the end of June 1996 and was not employed by the Respondent before 15 July 1996. Ground 5: "The learned Tribunal Chairman was wrong in law and misdirected the tribunal when he failed to consider and apply the directly applicable laws on the issue of legal relationship or association between the respondent, the University Hospital Birmingham NHS Trust, and the South Birmingham Health Authority before rejecting the applicant's claim of the existence of such legal relationship or association as wrong as a matter of law.

[23]Again, this goes to earlier employment and does not advance the matter. One of the complaints raised here is against the finding of the Tribunal that section 218(6) of the Employment Rights Act 1996 does not apply. When questioned about this, Mr Nenji's representative accepted that indeed it was his case that section 218(6) of the Employment Rights Act does not apply and his complaint was that the Tribunal had attributed this argument to him. Ground 6:

"The learned Tribunal Chairman erred in law and abandoned his duty when he failed to consider and apply the directly applicable and relevant laws and directions which had been brought to his attention in the open court by the applicant and copies of which were given to him."

[24]In the argument in respect of this there are various references to the establishment orders in respect of the National Health Service Trusts. They are directed to the establishment of those Trusts and possibly the transfer by Mr Nenji's employment to one (or more) of them and their potential effect does not form part of the essential reasoning of the Tribunal.

[25]The complaint made by Mr Nenji's representative is that these establishment orders are relevant because for the 1996 Order to apply he would have to show that he was in qualifying employment at a date earlier than 15 July 1996 when the Employment Tribunal found his employment with the Respondent NHS Trust started. That is right. But it does not mean that the existence, identity and status of that earlier employment is a part of this appeal. This is because if Mr Nenji fails to show that the later employment with the Respondent NHS Trust from 15 July 1996 qualified under the 1996 Order and thus that the Tribunal were wrong in their conclusion that it did not, these points do not arise.

[26]A point can be made that it might have been of assistance if the Tribunal had made findings on a hypothetical basis or, as would be termed in court judgments, an obiter basis if their finding relating to the employment by the Respondent NHS Trust from 15 July 1996 was found to be wrong. But the fact that they have not done so does not give rise to a reasonably arguable point of law on this appeal.

[27]Grounds 7, 8 and 9 all effectively deal with allegations of bias and procedural impropriety. The relevant test there is an objective one: see for example the Peter Simper & Co Ltd v Cooke

[1986] IRLR 19

case. In our judgment, on the documentary evidence before us, no reasonably arguable point is raised under these grounds.

[28]Grounds 10, 11 and 12 raise points relating to the omission of evidence from, and the way in which, the evidence of a Ms Val Witter was dealt with by the Tribunal and there is also an assertion that the Tribunal relied on conflicting irreconcilable evidence. In our judgment these points demonstrate a misunderstanding of the procedure that is adopted in Tribunals and the approach at law to the admission of evidence and do not disclose any reasonably arguable points of law. Also, within them is a point relating to bias as to the manner in which the cross-examination of Ms Val Witter was dealt with. Again, in our judgment, we find applying an objective approach, which we must, there is nothing in that point. Ground 13:

"The Tribunal was wrong in law in failing to make a decision on the previous posts of the applicant when such previous posts are the crucial factor for determining whether the applicant was in 'relevant employment' within the meaning of Order 1(2)(a) & (b) of Employment Protection (Continuity of Employment of National Health Service Employees) (Modification) Order 1996."

We have already dealt with this. As we have said, it might have been helpful if the Employment Tribunal had made a decision on this because then, if the Appellant was to succeed on this appeal, this Tribunal might be able to go on to reach a final conclusion. But the fact that they have not made these additional findings which are unnecessary, having regard to their essential reasoning, does not amount to an error of law. Ground 14 is:

"The Tribunal erred in law when it failed to consider and evaluate the evidence adduced by the applicant before holding the applicant is not qualified as undergoing professional training within the meaning of the Employment Protection (Continuity of Employment of National Health Service Employees) (Modification) Order 1996."

As we have said, in part this is included in the area of the appeal which we consider to raise reasonably arguable points. Ground 15:

"The Tribunal was wrong in law when it held contrary to evidence that the post occupied by the applicant was not yet approved by the Specialist Advisory Committee at the time of the applicant's appointment to the post on 15 July 1996."

[29]As a free-standing point, in our judgment this is simply a factual point which does not give rise to a reasonably arguable point of law. In a wider sense it is subsumed in the point which we have concluded is reasonably arguable as a matter of construction and whether or not the finding that Mr Nenji was not undergoing training within the 1996 Order is one that is properly explained or can be attacked as being perverse. Ground 16:

"The Tribunal erred in law and misdirected itself when it made two irreconcilable, conflicting inconsistent and contradictory findings on the date of commencement of the applicant's employment with the respondent."

[30]In our judgment this does not raise any reasonably arguable points of law. This also returns to paragraph 3(8) of the Extended Reasons which, in our judgment, do not contain inconsistent and contrary findings. Ground 17:

"The Tribunal erred in law in failing to consider, evaluate and find on the totality of material evidence adduced before it."

And Ground 18:

"The Tribunal erred in law and misunderstood and / or misapplied the facts in finding:"

And then a number of matters are set out.

[31]In our judgment these add nothing to the ground we have identified as being reasonably arguable or simply relate to points of fact.

[32]We have gone into this in some detail in an extemporary judgment in the hope of identifying and narrowing the points to be raised on this appeal. This judgment will be available to the Tribunal that hears the case as to the identification of those issues.

[33]We wish to make it clear that, save in the limited extent that we have described, we are not permitting Mr Nenji, through his representative, to advance the other points which we have found not to be ones which raise reasonably arguable points of law.

[34]In those circumstances, we give this case Category B, estimate it for a day and direct that skeleton arguments directed to the points we have identified be lodged 14 days before the date fixed for hearing.