THE ALFORD GROUP OF DOCTORS v MRS J THORNALLEY [2000] UKEAT 1077_99_1611

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1077_99_1611Case No Appeal No. EAT/1077/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE ALFORD GROUP OF DOCTORSAPPELLANTMRS J THORNALLEYRESPONDENT
Before
His Honour Judge H Wilson Ms N Amin Dr D GrievesDate 16 November 2000
[1]APPEARANCES For the Appellants MR GORDON HOLT (Solicitor) Messrs Bridge McFarland Solicitors 19 South Street Mary's Gate Grimsby North East Lincolnshire DN31 1JE For the Respondent THE RESPONDENT BEING NEITHER PRESENT NOR REPRESENTED JUDGE WILSON : This is the full hearing of the appeal by the original respondents to the application in this matter which came before the Employment Tribunal sitting at Lincoln on 20th July 1999. The original applicant had been employed as part-time receptionist for a practice of general practitioners for some 18 years. She complained that the circumstances in which her employment had come to an end constituted unfair dismissal. She had been offered a new contract in 1998, which she had refused, and following that refusal her dismissal had occurred. The tribunal found that the respondent practice was a group medical practice employing 18 staff. It was the only surgery in the town where the practice was located. Sometime in 1994 one of the partnership had asked the applicant if she would be prepared to work extra hours and she had declined, although the tribunal found that she customarily covered Saturday morning duties by working one Saturday in 13 in common with other staff, and the practice knew that she would work extra time if there was no cover providing it was convenient for her.[2]The tribunal found that it was not possible for the practice to continue to operate the surgery without a properly staffed reception. There were five part-time receptionists, including the applicant, the other four of whom were employed on contracts which provided that when necessary they could be required to work in excess of their normal hours in order to ensure that adequate cover was available when staff were either on holiday or on sickness absence.[3]Following a staff meeting on 9th November 1998, the other receptionists complained to the partnership about the fact that the applicant was not prepared to work extra hours. The respondent partnership decided to ask the applicant to agree to a variation of her contract of employment to put her on the same footing as all the other receptionists.[4]On 11th November 1998 one of the doctors had explained what the partnership wanted to do and explained the reasons for the change. The applicant was asked to consider and if necessary take advice. On 16th November 1998 the applicant returned her contract unsigned explaining that she did not want to take on extra compulsory hours. All the other employees who had been invited to accept a variation of their contracts did so.[5]On 18th November 1998 there was a further meeting with two doctors from the partnership and it concerned why the applicant was not prepared to sign her new contract. She repeated what she had said two days before which was a catalogue of personal reasons why she was content with things as they were. She indicated that her decision was final. Nevertheless, one of the doctors asked her to take another two weeks to consider the matter.[6]On 4th December 1998 the applicant returned her contract unsigned again, and in exchange was given a sealed envelope which contained the letter of dismissal, coupled with an offer to be re-engaged on the terms and conditions of the proposed new contract.[7]In their conclusions, expressed in paragraph 8 of their decision, the tribunal said that it accepted that:
"… it was necessary for the Respondent to ensure that reception was properly staffed at all times. In order to achieve this, it was necessary for all staff to be required to cover for holiday and sick leave. There was a sound good business reason for the Respondent to try and vary the Applicant's contract of employment. However, the Respondent ought to have anticipated that there would be a problem because the matter had been raised in a similar fashion in 1994."
We find that from the facts found by the tribunal, the respondent partnership had indeed anticipated that the applicant would require persuasion and there were the two meetings, which are set out at paragraph 3(i) and 3(j) of the decision, to which I have already referred.[8]Secondly, the tribunal found fault with the fact that the respondent partnership did not explain the consequences of the refusal to sign, but this had in fact been done and the fact was before the tribunal because it was set out in paragraph 7.5 of the Notice of Appearance by the partnership that:
"It became clear that the Applicant would not agree to the proposed variation notwithstanding the fact that the Respondents had notified her that her continuing refusal might jeopardise her future employment with the Respondents."
[9]The conclusion reached by the tribunal was that it accepted the dismissal was for some other substantial reason within the meaning of section 98(1)(b) of the Employment Rights Act 1996 , but it also decided that the respondent had acted unreasonably in treating that reason as a sufficient reason for dismissing the applicant, having regard to the reason, the circumstances, equity and the substantial merits of the case.[10]It seems to this Appeal Tribunal that the Employment Tribunal erred in failing to balance the factors which should have been balanced in deciding whether or not the reason was sufficient for dismissal.[11]Taking the facts as found by the Employment Tribunal, in one balance was the personal interest of the applicant for keeping things as they were; in the other balance, was the necessity to ensure that the reception was properly staff at all times and the necessity for all staff to be required to cover for holiday and sickness absence. Those factors constituting a sound good business reason for varying the contracts of all employees to make them similar.[12]It seems to us that the error was to have considered only the applicant's point of view and therefore we find that the decision was unsustainable on that one point.[13]We are invited to substitute our own decision for that of the Employment Tribunal's, and because it can be done by accepting all the facts as found in the Employment Tribunal's decision, save for the one final matter, we agree to do that.[14]We set aside the decision of the Employment Tribunal and substitute our own finding that, in acting as they did, the respondent partnership was not unreasonable in treating the reason as a sufficient one for dismissal. In those circumstances, the application fails.