Shawkat v Nottingham City Hospital NHS Trust [1999] UKEAT 519_98_2502

EAT

Shawkat v Nottingham City Hospital NHS Trust

[1999] UKEAT 519_98_2502 · 1999-02-01

MR JUSTICE CHARLES : The parties to this appeal are Mr S. Shawkat (the Applicant and Appellant) and Nottingham City Hospital NHS Trust (the Respondents).

The appeal relates to a decision of the Industrial Tribunal at Nottingham which is contained in Extended Reasons dated 6 March 1998. The hearing before the Tribunal lasted for eight days.

The Tribunal decided that the Applicant was unfairly dismissed. It also concluded that the reason for the dismissal was not redundancy and it is this part of the decision which is the subject matter of this appeal.

Background

We take this from paragraph 2 of the Extended Reasons which was in the following terms:

"2. The Applicant was employed by the Respondent as a staff grade doctor in Thoracic Surgery with effect from 11 October 1993. In addition to his surgical duties he carried out second on-call duties in the Thoracic department. Following the setting up of the Respondent's Cardio/Thoracic unit the Applicant was required, inter alia, to be first on call in the Cardiac Intensive Care Unit. He complied with this requirement for a short time before terminating his on-call duties. This action precipitated a sequence of events which ultimately led to the Applicant's dismissal. It is the Respondent's case that the changing circumstances required changes to the Applicant's working arrangements which were reasonable, and after a full consultative procedure, they had no alternative but to dismiss him and that such dismissal fell within the provisions of Section 98 (1) (b) of the Employment Rights Act 1996 (the Act) as 'some other substantial reason' (SOSR) of a kind such as to justify the dismissal of an employee holding the position which the employee held. Furthermore says the Respondent the requirements of Section 98 (4) of the Act were met and the dismissal was reasonable in all the circumstances of the case. The Applicant argues that his dismissal was unfair in the context of his professional aspirations, his age and status, and health and safety reasons, and alleges that the true reason for his dismissal was redundancy. He further alleges that his dismissal was unfair in that he was not consulted about proposed changes to the terms of his contract of employment and that no reasonable employer would have sought to have imposed such changes on him. He further alleges that he was not given the full contractual notice of 3 months to which he was entitled - a matter which was admitted by the Respondent from the outset, coupled with an offer to pay the balance of notice pay which is due."

The Grounds of Appeal

These are contained in paragraph 6 of the Notice of Appeal and are as follows:

"6. The Grounds upon which this appeal is brought are that the Tribunal misunderstood and/or misapplied the law in relation to the Appellant's claim for redundancy in that: (i) The Tribunal did not apply the presumption of redundancy as required by Section 163(2) Employment Rights Act 1996;

(ii) In stating in paragraph 5 (iii) of the Extended Reasons that ' ... in particular we must not be tempted to add the words to the kind of work 'for which the [Appellant] was employed', the Tribunal failed to apply or apply properly the test set out in Church v West Lancashire NHS Trust [1988] [should be 1998] IRLR 4 where it was held that '... the proper meaning of the words 'work of a particular kind' is that it is work of a particular kind which the dismissed employee was employed to do';

(iii) The Tribunal therefore failed to give any or any proper consideration to the Appellant's arguments and submissions on redundancy as is evident from paragraph 7(ii) of the Extended Reasons."

Paragraphs 5 (iii) and 7 (ii) of the Extended Reasons

These are the paragraphs in the Extended Reasons referred to in the Notice of Appeal and they are in the following terms:

"5 (iii) Redundancy

Section 139(1) of the Act provides inter alia that dismissal is by reason of redundancy if it is wholly or mainly atttributable to ' ... (b) the fact that the requirements of that business (1) for employees to carry out work of a particular kind ... has ceased or diminished or are expected to cease or diminish'. In considering the Applicant's claim that his dismissal was by reason of redundancy, we remind ourselves of the recent guidance given by the EAT in case of Safeway Stores Plc v Burrell

[1997] IRLR 200

as to the correct approach for determining what is dismissal by reason of redundancy ie: - a three stage approach (1) was the employee dismissed? If so

(2) had the requirements of the employer's business for employees to carry out work of a particular kind ceased or diminished or were they expected to cease or diminish? If so

(3) was the dismissal caused wholly or mainly by that state of affairs. At stage two the only question to be asked is whether there was diminution/cessation in the employer's requirements for employees not just the Applicant (our emphasis) to carry out work of a particular kind or an expectation of such a diminution/cessation in the future. In particular we must not be tempted to add the words to the kind of work 'for which the Applicant was employed'. The Applicant's case is that there was a diminution in work. If there is a redundancy (Stage Two) then the question is whether the dismissal was attributable wholly or mainly to that redundancy.

7 (ii) We reject the Applicant's contention that there was a redundancy situation. In so finding we pay attention to the principles enunciated in the Safeway case referred to in paragraph 5 (iii) of these reasons - quite simply because there was no diminution in the requirements of the Respondent for employees (not just the Applicant) to carry out work of a particular kind. It would be an error on our part to restrict consideration simply to the Applicant or indeed to a career grade doctor. That being so, there was no necessity for us to consider further matters such as the suitability of the alternative employment offered to the Applicant."

The First Ground of Appeal - Failure to apply the presumption in Section 163 of the Act

In our judgment, correctly, this ground was not pressed before us in oral argument. We will however deal with it shortly.

Section 163 subsection (1) and (2) are in the following terms:

"163(1) Any question arising under this Part as to - (a) the right of an employee to a redundancy payment, or (b) the amount of a redundancy payment,

shall be referred to and determined by an industrial tribunal.

(2) For the purposes of any such reference, an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy."

We agree with the submission made on behalf of the Respondent that the section only applies to a question arising under Part XI of the Act. It follows that the presumption does not arise in respect of the claim for unfair dismissal under Part X of the Act if that is treated as a discrete issue. We are of this view notwithstanding what is said in paragraph 21 of the decision of this Tribunal in Church v West Lancashire NHS Trust

[1998] IRLR 4

at page 7.

In this case claims for unfair dismissal and a redundancy payment were heard together.

In determining those claims, to use the statutory language contained in section 163(2) the Tribunal found that the "contrary was proved" in rejecting the Applicant's assertion that he had been dismissed by reason of redundancy.

If one assumes that the presumption applies because the claim under Part XI should be treated as a separate claim, or because it arises in any case where a question under Part XI is referred to an Employment Tribunal, in our judgment this ground of appeal fails. We are of this view because it only applies if the contrary is not proved . It is thus clear that, as with other presumptions, the presumption contained in section 163(2) is a rebuttable presumption. In our judgment where, as here, there is a dispute as to the reason for dismissal which is the subject of evidence and determination by the Tribunal, it would only be in a very rare case that a Tribunal would be unable to determine, on the balance of probabilities, what the reason for the dismissal was and it would only be when this was not the case that the decision would be determined by the presumption.

In this case the Tribunal did determine what the reason for dismissal was on the evidence that they heard and in our judgment they did not err in law in not expressly referring to the presumption contained in section 163 in their Extended Reasons, or in not placing weight on it or having particular regard to it in their decision-making process.

The Second Head of Appeal - The Approach of the Tribunal

Section 139 of the Act contains the following provisions:

"139(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to - (a) the fact that his employer has ceased or intends to cease - (i) to carry on the business for the purposes of which the employee was employed by him, or

(ii) to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business - (i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,

have ceased or diminished or are expected to cease or diminish.

(6) In subsection (1) 'cease' and 'diminish' mean cease and diminish either permanently or temporarily and for whatever reason."

As appears from the Extended Reasons and the Notice of Appeal we were referred to two recent cases of this Tribunal dealing with section 139(1)(b)(i) which is the relevant part of the section in this case. Those cases were Safeway Stores Plc v Burrell

[1997] IRLR 200

and Church v West Lancashire NHS Trust

[1998] IRLR 4

. The Church case refers to and relies on the decision of the Court of Appeal in High Table Ltd v Horst & Others

[1997] IRLR 513

as to the approach to be applied to the construction and application of section 139. Both the Safeway case and the Church case are primarily dealing with "bumping" and not with the situation that arose in this case.

We would like to record our gratitude to the members of the Tribunals in both the above cases for their analyses and discussion of the relevant authorities and their reasoning. In view of those judgments we do not propose to examine the earlier authorities referred to therein in any great detail.

The Approach to the Construction and Application of the Section

The focus of this appeal is the meaning and application of the statutory phrase "work of a particular kind".

A general principle of statutory construction is that the meaning and application of such a statutory phrase, which contains words in common usage, have to be determined by reading the statutory words in their context. Here therefore they have to be read in the particular context of section 139 and Part XI of the Act and with regard to their statutory purpose. They also have to be read in the context of the Act as a whole.

Section 6 of the Interpretation Act 1978 provides that:

"Unless the contrary so appears the plural include the singular."

In our judgment this applies to section 139(1)(b)(i) and therefore the reference therein to employees includes an employee."

We agree with this Tribunal in the Church case that in construing and applying one of the four subsections (and thus one of the four cases) referred to in section 139(1) of the Act, regard should be had to the other subsections, or cases. This is an aspect of construing the subsections in their context. Further, we agree with the conclusion in paragraph 24 of the judgment in the Church case that the phrase "that business" in the introduction to subsection 139(1)(b) means the "business for the purposes of which the employee was employed by him" (see section 139(1)(a)(i)).

It follows that a starting point for the consideration of section 139(1)(b)(i), and thus of the question what is meant by the phrase therein "work of a particular kind" is that that phrase has to be construed and applied by reference to the requirements of the business of the employer. Here the Respondent NHS Trust. This has the result that in applying the statutory test the phrase "work of a particular kind" should not be isolated and the test is whether:

"The requirements of that business (ie the business for the purposes of which the dismissed employee was employed) for employees to carry out work of a particular kind has ceased or diminished."

This approach requires an identification of 'work of a particular kind', and thus whether a generic description of work falls within the ambit of the meaning of the statutory phrase "work of a particular kind" in the context of the requirement of the business of the employer rather than in the context of the wishes, or requirements, of the employee or anyone else.

In our judgment, another important point to remember concerning statutory construction and application, is that in construing and applying statutory phrases which contain words in ordinary usage, care must be taken not to replace the statutory words with other words and thereby to seek to define the meaning of the statutory words, or the extent of their meaning, in the abstract. When this is remebered it focuses attention upon the application of the statutory phrase to a given set of facts and circumstances, and thus on the question whether those facts and circumstances are within the range of facts and circumstances covered by the statutory phrase construed and applied in its context (see for example R v MMC ex-parte SYT

[1993] 1WLR 23

, in particular at pages 28 H to 29 D and 32 C to 33 A).

As a matter of ordinary usage the phrase "work of a particular kind" has a breadth of meaning and could cover different things in different circumstances. As has been said in other cases such phrases are "chameleon phrases" which take colour and meaning from their context and the circumstances in which they are to be applied. Also as is pointed out in Harvey at E paragraph 814 - 15 the Act uses the indefinite article (words of a particular kind). This carries with it the result that the phrase can apply to different kinds of work which(a) could be defined by reference to, or linked to, what an employee is actually doing or could be required to, but would not have to be so linked, or

(b) could be identified by a generic description of work within the business of an employer, but would not have to be so identified. So when it is considered in isolation the statutory phrase involves a generic description which could cover or include a wide description (eg medicine), or narrower descriptions (eg surgery, cardio thoracic surgery, cardiac surgery, thoracic surgery or a particular job description).

Further, in our judgment there is no doubt that, as the earlier cases and paragraphs E 814 - 16 to 814 - 21 of Harvey show the statutory phrase falls to be construed and applied in differing circumstances. For example:

(a) in the Safeway case and the Church case it was considered in the context of "bumping",

(b) in some cases it has to be considered where a different result would, or might, arise from an application of what is described in those cases (and earlier cases) as the "contract" and "function" tests, and

(c) in some cases it has to be considered in the context of the introduction of something new into, or a change to, or a reorganisation by the employer of, its business.

In this case no question of "bumping" arises. Also it is common ground that issues do not arise by reference to the differences between the "contract" and "function" tests. This is because the extent of the work that the Applicant could be required to do under his contract was the same as the work he was actually doing.

It follows that we are not called upon to choose between the decisions of this Tribunal in the Safeway case and the Church case (which we understand has not been appealed notwithstanding the leave granted). We would however respectfully comment that when such a choice has to be made it could be decided that in the application of the subsections and cases contained in section 139, what the dismissed employer(i) was employed to do,

(ii) did or

(iii) could be required to do under his contract of employment, was a relevant circumstance or factor in one case but not in another. In our judgment this is because an approach that focuses on a question whether the circumstances of a given case fall within the statutory test does not necessarily require that such factors relating to the work of the relevant employee are always relevant in deciding whether a subsection, or case, within s. 139 (1) applies.

In the Safeway case this Tribunal in paragraph 48 of their judgment cite and comment on the decision of this Tribunal in Cowen v Haden Carrier Ltd

[1982] IRLR 225

as follows:

"The employee appealed to the Employment Appeal Tribunal; like Mr Nelson, he conducted his own case. The judgment of Browne-Wilkinson J appears at p. 225 of the report. The basis of the employee's appeal is set out at 226, 10-12:

'The employee argues that that decision involves a misdirection in law by the industrial tribunal. He submits that it cannot be said that he was redundant under s.81 (2)(b) unless the employers have shown a diminution in the requirements of their business for employers to carry out work, not only of the kind done by a divisional contract surveyor, but of the kind which under his contract of employment he could have been required to do. He submits, plainly correctly, that the industrial tribunal have not applied that test but have directed themselves simply to the question 'was there any longer a requirement for a divisional contracts surveyor?'. The industrial tribunal had no regard to any other work which the employee under his contract of employment could have been required to carry out. Therefore, he says that there has been a fundamental misdirection in law in that the reason for dismissal under s. 57(2) has not been shown to be redundancy.

If the matter were free from authority, we would have had little hesitation in dismissing the employee's submission on that point. If one simply reads the words of s.81(2) themselves, there is nothing in them which requires one to look at the terms of the particular claimant's contract of employment. What the Act on its face requires is that one should look at the business of the employer to see whether there is a diminution in the requirements of that business for employees to carry out work of a particular kind, unrelated to any definition of the work which the particular employee who is making the claim can be required to do. In practice, in the experience of all of us on this tribunal a redundancy is accepted as having been shown where it is demonstrated that the actual job which the complainant was carrying out had ceased to exist. In our experience, nobody has previously sought to say: 'Even though my job has gone, look at what I might otherwise have been required to do' and to go on to submit, as the employee does in this case, that an employer cannot show that there is a redundancy under s.81(2)(b) unless he is able to show that there is a diminution in the employer's requirements, not only for the work that the claimant was actually doing, but for all types of work that he could be required to do. That is our experience of recent practice.

There being nothing in the words of the Act to support the employee's submission, and, the submission running contrary to the way in which (so far as we are aware) for a considerable time the section has been applied in practice, we would have upheld his submission.'

Pausing there we would have thought that the Employment Appeal Tribunal's initial view, expressed by Browne-Wilkinson J, was plainly and obviously correct."

In our judgment, this comment of the Tribunal in the Safeway case shows that in their view the work that the dismissed employee was doing was not irrelevant in all cases. A consideration of the work that the employee was doing is not the same thing as a consideration of the terms of his contract of employment. This is particularly the case when the relevance of the contract is being considered, or primarily considered, in the context of the applicability of the "contract" test, and thus in the context of the issue whether under the contract the dismissed employee could be required to do other work to which he was in fact doing.

In our judgment it follows that whether the relevant passages in the Safeway case as to the approach to be adopted under section 139 of the Act are obiter , or not, that case is not authority for the proposition that the work that the dismissed employee was doing is always irrelevant in answering the question posed by section 139(1)(b)(i) of the Act. This is so whether or not the following conclusions in that case are correct namely:(a) that in a "bumping" situation the "work of a particular kind" is not that which the dismissed employee did, and

(b) that the question of what work the dismissed employee was employed to do, or could be required to do, under his contract of employment is irrelevant in determining what is described in the Safeway case as the Stage Two question.

In our judgment when a "bumping" situation is not under consideration, the work that the dismissed employee was in fact doing is a relevant consideration in determining whether the provisions of section 139(1)(b)(i) are satisfied. In our judgment in such a case the relevance of the work that the employee was in fact doing cannot be confined to the issues of causation. We consider that this view is supported by the decision of the Court of Appeal in the High Table case.

We agree with the conclusion of this Tribunal in the Church case that guidance as to the correct approach to the construction and application of section 139(1)(b)(i) is to be found in the decision of the Court of Appeal in the High Table case and that the heart of that guidance is to be found in the passage cited at paragraph 32 of the judgment in the Church case. That paragraph is in the following terms:

"In the High Table case the court was concerned with case 2. Specifically, it was concerned with the meaning of the words 'where the employee was so employed'. It seems to us that the essence of the judgment of the Court of Appeal can be found in the following passage:

'The question it poses - where was the employee employed by the employer for the purposes of the business - is one to be answered primarily by a consideration of the factual circumstances which obtained until the dismissal. If an employee has worked in only one location under his contract of employment for the purposes of the employer's business, it defies common-sense to widen the extent of the place where he was so employed, merely because of the existence of a mobility clause. Of course the refusal by the employee to obey a lawful requirement under the contract of employment for the employee to move may constitute a valid reason for dismissal, but the issues of dismissal, redundancy and reasonableness in the actions of an employer should be kept distinct. It would be unfortunate if the law were to encourage the inclusion of mobility clauses in contracts of employment to defeat genuine redundancy claims. Parliament has recognised the importance of the employee's right to a redundancy payment. If the word [work] of the employee for his employer has involved a change of location, as would be the case where the nature of the work required the employee to go from place to place, then the contract of employment may be helpful to determine the extent of the place where the employee was employed. But it cannot be right to let the contract be the sole determinant, regardless of where the employee actually worked for the employer. The question 'what was the place of employment' is one that can safely be left to the good sense of the industrial tribunal'."

In that citation Peter Gibson LJ says that the application of the statute is answered primarily by consideration of the factual circumstances which obtained until the dismissal and as we understand his judgment (with which the other members of the court agreed) he, and thus the Court of Appeal, are advocating the pragmatic approach of applying the statutory words to the circumstances found to exist and alleged to give rise to a redundancy or redundancies. This is the approach we have referred to earlier. Further, in this passage the Court of Appeal are making it clear that the terms of the contract of employment, in that case relating to mobility, can be helpful and relevant in determining whether a redundancy situation exists but that it cannot be right to let the contract be the sole determinant of this issue regardless of where the employee actually worked for the employer.

We therefore agree with this Tribunal in the Church case when they conclude at paragraph 33 of their judgment that:

"It will be seen, therefore, that in relation to case 2, the test to be applied by the industrial tribunal is not a technical question as to contractual obligations but a more pragmatic approach. Neither of the two rival arguments of 'contract' and 'function', as though the one excluded the other, should be adopted by the industrial tribunal. As they are used to doing, industrial tribunals will look at the realities on the ground and keep an eye on the contractual obligations and then make a sensible judgment."

We also agree that this approach is one that should be applied to all four of the situations, or cases, covered by section 139(1).

However, we do not accept that this approach leads to a conclusion that the statutory phrase "work of a particular kind" in section 139(1)(b)(i) should be read, construed or qualified by adding the words " which the dismissed employee was employed to do ". In our judgment this approach does not support or lead to the addition of disqualification and it should not be added.

In our judgment the approach in the High Table case supports the conclusion:

(a) that such words should not be added as a gloss, redefinition or description of the statutory test and

(b) that in deciding in a given case whether the statutory test is satisfied (i) it and it alone, should be considered and applied against the facts of that case, and

(ii) in this case such facts would include elements of both the "contract" and "function" tests but that neither would of itself be decisive. This has the effect that generally neither:(a) the precise extent of the work the dismissed employee was doing, nor

(b) the extent of the work that the dismissed employee could be required to do under his contract of employment

determines the answer to the statutory question, namely whether:

' the requirements of that business (and thus the business for the purposes of which the dismissed employee was employed) for employees to carry out work of a particular kind has ceased or diminished'.

It follows in our judgment that the fact that the dismissed employee's job (whether that is defined by reference to precisely to what he did do, or to what he could be required to do) no longer exists is not of itself decisive. When this situation arises it would have to be decided whether that job was co-extensive with "work of a particular kind" within the statutory test. Sometimes the extent of the work that the dismissed employee actually did, or could be required to do will identify the "work of a particular kind" within section 139(1)(b)(i), but on other occasions it will not. In our judgment much will depend on the nature of the work done, whether it can fairly be described as a kind of work having regard to the requirements of the employer's business and the extent of any changes that could be imposed under the contract of employment.

We add that if the test were to be re-phrased to read:

" The requirements of that business, and thus the business for the purposes of which the dismissed employee was employed, for employees to carry out work of a particular kind which the dismissed employee was employed to do has ceased or diminished".

this emphasises or introduces the question whether in deciding "what the dismissed employee was employed to do" the "contract" test should be applied or the "function" test should be applied, or whether neither of them should be applied in a determinative way.

In our judgment in the Church case this Tribunal correctly decided that neither the "contract" or "function" test is, or should be, decisive. It follows in our judgment in a case which does not involve "bumping" the qualification " which the dismissed employee was employed to do " does not add anything. This is because the same approach (ie the pragmatic approach referred to in paragraph 33 of the Church case) would result from an application of the statutory words without any such qualification. In our judgment it therefore follows that in introducing this qualification in the Church case the Tribunal were dealing with, and directing their minds to a case where "bumping" was in issue to indicate that in their view when the "work of a particular kind " was not, or did not include, work that the dismissed employee was employed to do (however that statutory qualification is to be construed and applied) section 139(1)(b)(i) was not satisfied.

As we have said this is not a "bumping" case and we therefore do not have to decide, and do not attempt to decide, whether the conclusion in the Church case in respect of "bumping" is correct. We add that, in our judgment correctly, this issue was not argued before us.

The Approach of the Tribunal

This appears in paragraphs 5(iii) and 7(ii) of their Extended Reasons.

As we understand those paragraphs they adopted an approach which excluded from their consideration what the Applicant actually did, and thus in this case what he was employed to do. As appears above in our judgment by taking this approach the Tribunal erred in law.

As we understand it the Tribunal was not referred to the Church case, or to the High Table case and did not have the benefit of much of the argument we heard. We record that we recognise that the Tribunal were thus faced with a difficult task in deciding what was the correct approach for them to adopt and they have our sympathies.

We also record that before us, in our judgment correctly, Counsel for the Respondent (who did not appear before the Tribunal) did not argue with any vigour that the Tribunal had taken the correct approach.

The Correct Approach

We have described this above. In short in our judgment the Tribunal should pose themselves the statutory question and therefore ask whether in the particular circumstances of this case:

"The requirements of that business (ie the business for the purposes of which the dismissed employee was employed) for employees to carry out work of a particular kind has ceased or diminished."

In our judgment it would be dangerous and inappropriate for us to try and define what all the relevant circumstances would be generally, or what they would be in this case. However, as appears above, in this case they include:

(a) the work the Applicant actually did, and

(b) points numbered 1 to 4 below under the heading " Our Conclusion" .

The Position of the Parties before us

Although neither of the parties formulated the correct approach to be adopted in precisely the above terms they both made submissions on the basis that if the work that the Applicant did, and was employed to do, was taken into account a Tribunal hearing this case could only decide in favour of their respective arguments. In brief:

(1) The Applicant asserted that what he did, which was 100 per cent thoracic surgery, is work of a particular kind within section 139(1)(b)(i) and that even if he was the only employee doing that work the requirements of the business of the Respondent for him (or anyone else) to do that work ceased or diminished.

In support of that argument he referred us to passages in Harvey , in particular at E paragraph 814 and especially 814 - 08 and Murphy v Epsom College

[1984] IRLR 271

and in particular paragraphs 38 and 54 of the judgments.

(2) The Respondents asserted that at its narrowest the kind of work that the Applicant was doing, and was required to do, was thoracic surgery and that assessed by reference to the requirements of the Respondent's business, that is the narrowest identification of work of a particular kind.

They went on to assert that the requirements of the Respondent's business for employees to carry out this kind of work (or work of any wider description relating to the Applicant's dismissal eg. Cardiac and thoracic surgery) had not ceased or diminished. They also said that the need for this kind of work had not ceased or diminished. They referred us in particular to North Riding Garages Ltd v Butterwick

[1967] 2 QB 56

Central issues are therefore whether for the purposes of section 139(1)(b)(i) in this case work comprising 100 per cent thoracic surgery carried out by a person at the Applicant's level of employment is "work of a particular kind" having regard to the requirements of the Respondent's business, and if so, is work comprising a mixture of thoracic and cardiac surgery carried out at that level, work of a different particular kind.

We acknowledge that each side gained some assistance from the authorities they respectively referred to and relied on. However, in our judgment these authorities are not decisive. That is not surprising because they are not dealing with the same situation but only with situations that can be applied by analogy. We add that although we accept that the particular kind of work should be identified in the context of the requirements of the employer's business, we are not convinced that the submission made on behalf of the Respondent that the fact that a case such as this one and the North Riding Garages case can be categorised as "reorganisation cases" is significant. We are unconvinced that generally the cause of the relevant change in the employer's requirements will be significant.

Our Conclusion

In our judgment it is not clear on the facts found by the Tribunal, and the agreed facts, that a Tribunal that properly directed itself would only reach one conclusion as to the application of section 139(1)(b)(i) in this case and therefore in our judgment we should remit the issues in this case relating to redundancy to the Tribunal. We have reached this conclusion for the following main reasons, namely:(a) Notwithstanding the helpful, and informative, efforts of the parties before us through their representatives to summarise the relevant facts, we were left with the impression that there was not total agreement and with the feeling that we did not have a sufficiently full appreciation of the relevant facts to enable us to make a properly informed decision. In saying that we hasten to add that this is not, in any sense, a criticism of the Tribunal, or the parties, to whom we are grateful for their exposition and summary of the facts but is simply a product of the fact that a considerable amount of evidence was heard by the Tribunal relating to a number of factual disputes,

(b) As mentioned further below there is some doubt as to the extent and detail of the findings of fact upon which the conclusion in paragraph 7(ii) of the Tribunal's Extended Reasons are based.

(c) The relevant questions are ones in respect of which two bodies applying the right approach could reach different answers and as Peter Gibson LJ points out in the High Table case are questions that can safely be left to the good sense of the Tribunal.

(d) We have concluded that some of the surrounding circumstances that should be taken into account in applying what we regard to be the correct approach may not have been fully investigated before the Tribunal, and

(e) In any event it was common ground that the "redundancy issues" relating to suitable alternative employment would have to be remitted, and we add, if they are not agreed, so would the issues relating to causation.

Both parties acknowledge that there would be some advantages in the "redundancy" issues being heard by the same Tribunal who heard evidence in this case over a number of days.

We have concluded that in this case those advantages outweigh the disadvantages that might arise from remission to the same Tribunal. For example, that Tribunal will be able to resolve quickly whether, as the Respondents assert, their conclusion in paragraph 7(ii) of their Extended Reasons reflects findings that:

(i) there was no reduction in the amount of thoracic surgery that needed to be performed; and

(ii) there was no reduction in the number of employees required to perform that work.

We understand that these points were hotly disputed.

Returning to point (d) above, and thus to the facts and circumstances of this case which may not have been fully investigated before the Tribunal, we identify the following matters which in our judgment are relevant to determining whether section 139(1)(b)(i) applies, and the question whether the Applicant was offered suitable alternative employment. These matters are:

(1) The relationship between thoracic and cardiac surgery at the level at which the Applicant was employed, which for convenience was described as middle grade (although it was accepted that there was no such grade and the Applicant was, in some respects, in a unique position).

(2) Whether there is a normal point at which surgeons will specialise in thoracic or cardiac surgery. We understand that some of the consultants in the combined unit set up by the Respondent specialise in only one of these areas but that others specialise in both and that the Respondent's requirements lead to the result that doctors employed at a lower level should do both cardiac and thoracic surgery.

(3) The Applicant's training and experience, and thus his ability to do cardiac surgery. We understand that he had the relevant training and experience (albeit perhaps sometime ago) but did not want to do cardiac surgery for reasons he advanced, some, or all, of which were accepted by the Tribunal (see the Extended Reasons paragraph 6(xvi).

(4) The relevance of the problems and issues relating to the period that the Applicant was on, or was to be on, call, and the extent to which these were separate issues to those relating to the differences between cardiac and thoracic surgery at the Applicant's level of employment. We add, by way of comment, that we suspect that the level of the Applicant's employment is relevant, and that the identification of work by reference to a kind, or kinds, of work relating to particular specialisms will increase as seniority increases.

Finally, we acknowledge that by(a) describing the approach to be adopted by reference to the statute, and

(b) identifying some points which we think are relevant but not setting out what we consider to be all the relevant circumstances in this case, we have not given specific guidance as to the weight and importance of relevant factors in this case. However, we have concluded that it would not be appropriate for us to try and give that guidance. This is because we are not the decision-makers on the "redundancy issues" and, as we have said, in our judgment the correct approach is for the Tribunal to apply the statutory test to the facts and circumstances of this case as found by them in the light of the evidence they have heard. We acknowledge that that is not an easy task but like others before us note that it is one in respect of which the Tribunal is well qualified to make a sensible and informed judgment.