MRS S P ATHERDEN AND OTHERS v ST HELENS AND KNOWSLEY HOSPITALS NHS TRUST [2002] UKEAT 1101_01_0503

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1101_01_0503Case No Appeal No. EAT/1101/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS S P ATHERDEN AND OTHERSAPPELLANTST HELENS AND KNOWSLEY HOSPITALS NHS TRUSTRESPONDENT
Before
Lord Davies of CoityDate 5 March 2002
[1]APPEARANCES For the Appellants MR STEPHEN PINDER (Solicitor) Messrs Edwards Abrams Doherty Solicitors 125/131 Picton Road Liverpool L15 4LG MR COMMISSIONER HOWELL QC: This is a preliminary hearing of an appeal in two test cases, out of a total of some 16 Originating Applications before the Employment Tribunal in Liverpool brought by Community Midwives against the St Helens and Knowsley Hospital NHS Trust, alleging unfair dismissal and/or breach of contract in the Trust's attempt to reorganise the pattern of shift working in its Community Midwifery Service in September 2000.[2]In the two particular cases with which we are concerned, on the Originating Applications brought by a Mrs Bartsch and a Mrs Williams, the unanimous decision of the Tribunal sitting at Liverpool on 27 June 2001 and set out in Extended Reasons sent to the parties on 3 August 2001 was that, first, the changes the Trust was seeking to impose did not involve a breach of any term of their contracts of employment and, secondly, that the terms and conditions of these ladies' employment were as the Tribunal described in paragraph 23 of their Extended Reasons, as follows:
"23 … the terms and conditions upon which the applicants are and were employed are simply those set out in the 'collective' documents that they already have."
[3]That last finding reflects one of the heads of relief sought in all the Originating Applications before the Tribunal, which was for a declaration as to what the terms of these ladies' contracts of employment were, and for the payment of money alleged to have been unlawfully deducted from their remuneration to which they were entitled. That was by reason of the lower amounts that we understand they would be likely to get under the new shift pattern, in particular for on-call working, compared with what they were used to under the old pattern of working.[4]The Tribunal reached those conclusions in particular by holding that there was, by September 2000, no express or implied term of any of the midwives' contracts of employment that precluded the imposition by the Trust of the new shift pattern which the Applicants found less advantageous.[5]The Tribunal in particular rejected an argument that the existing shift pattern, (which was described as a "4/4/6 shift pattern" involving work on four days a week for two weeks, followed by a six-day week, including the weekend of the third week, and enabled the Applicants to have the same day off each week) had become a contractual entitlement by what was described as "custom and practice" or otherwise. That was based on evidence as recorded in the Tribunal's own findings as to what the original contractual arrangements with each of these ladies had been, and what had been the actual pattern of her employment over a period of some years.[6]We were told that in fact the evidence they gave as to the existing 4/4/6 pattern was not disputed and, indeed, was supported and, more clearly expressed by Mrs Whewell, Head of Midwifery Services who gave evidence for the Respondents. However despite that undisputed evidence as to the existing pattern the Tribunal, by looking at rotas for a period of six months from 1999 to March 2000, found themselves unable to discern such a pattern. Contrary to the evidence given, they recorded the conclusion that the Applicants had failed to articulate properly what their actual shift structure had been, with the consequence that the Tribunal found that there was no set pattern such as had been claimed. Consequently, although there had been original provisions in each lady's contract of employment, providing for a shift pattern as a term of their employment, nevertheless they held that the abandonment of the original shift pattern had for practical purposes had the consequence that there was no longer any term of their employment about shift patterns. It therefore followed that the employer was in a position to impose whatever shift patterns it chose in September 2000.[7]The Tribunal's conclusions were expressed, in particular, in paragraphs 21 to 23 of their Extended Reasons:
"21 … We were not in a position to imply such a term as a result of 'custom and practice'. It clearly could not be asserted that there was any such practice (of offering on-call work) within the profession of midwifery. The fact that the applicants may have been directed to undertake such work for several years is not inconsistent with the Trust being at liberty not to offer them it. 22 Even if that were not the case, there would clearly be insufficient certainty in any such term. 23 We therefore concluded that the Trust had acted within the terms of the existing contracts of employment of the applicants in directing them in the manner in which they should perform those contracts from September 2000 onwards. It follows that the terms and conditions upon which the applicants are and were employed are simply those set out in the 'collective' documents that they already have."
[8]Against that decision the Applicants seek to appeal to the Appeal Tribunal in the test cases, on grounds set out in the Notice of Appeal dated 6 September 2001 and the Skeleton Arguments which Mr Pinder has presented to us today. For present purposes we need say no more than that we have been satisfied, having heard him, that there are arguable grounds to warrant our directing a full hearing of this appeal, inter partes before the Appeal Tribunal.[9]We reach that conclusion since two issues in particular appear to us in themselves to warrant such a hearing. First, whether the Tribunal made sufficient findings of fact as to what the terms of the contracts of employment of these ladies actually were in September 2000, by reference to collective documents or otherwise. Secondly, whether the Tribunal misdirected themselves or reached an unreasonable conclusion on the question of whether the variation sought to be imposed in September 2000 was within the terms of their existing contractual employment. We say that in view, in particular, of the Tribunal's own express findings of fact and the undisputed evidence that the original terms for these two ladies had included a provision for a certain shift pattern of working for five plus four shifts on alternate weeks, and what we were told was the undisputed evidence, that the established pattern of work over some years for each had become "4/4/6", the arrangement to which we have referred.[10]For those reasons, we will direct that the two cases should be set out down for full hearing. Listing Category B with a time estimate of a day. We direct that the Chairman should be asked to provide his notes of the evidence of Mrs Whewell only. Skeleton Arguments to be exchanged between the parties and lodged with the EAT office not later than 14 days before the date to be fixed for the full hearing.