Devon Primary Care Trust v Readman

The Court of Appeal allowed the Trust's appeal. The Tribunal had applied the correct subjective test from Everest's Executors v Cox for whether an employee unreasonably refused an offer under section 141 of the Employment Rights Act 1996, but it failed to address the respondent's core reason for refusal: her long career in community nursing and objection to returning to hospital practice. That failure was an error of law. The Employment Appeal Tribunal had also erred by importing the "band of reasonable responses"/unfair dismissal test and by substituting its own conclusion without remitting for further fact-finding. The Court remitted the matter to the Employment Tribunal for reconsideration applying the proper legal test.

Background and parties: The respondent had worked in community nursing since 1985 and was a band 8A community modern matron. After a reorganisation she was offered a band 8A matron role at Teignmouth Hospital and alternative band 7 community posts. She rejected the hospital offer and later emigrated to Canada. The Tribunal (Taunton) found she was not entitled to a statutory redundancy payment. The Employment Appeal Tribunal allowed her appeal and substituted a finding that she was entitled to the redundancy payment and refused a review application. The Trust appealed to the Court of Appeal.

Nature of the claim / relief sought: Determination whether the respondent unreasonably refused an offer of suitable alternative employment for purposes of entitlement to a statutory redundancy payment under section 141 of the Employment Rights Act 1996; consequential entitlement to redundancy pay (amount agreed subject to liability).

Issues framed:

• Whether the Employment Tribunal erred in law in assessing whether the respondent unreasonably refused the hospital offer under section 141(2)–(3).
• If there was legal error, whether the Employment Appeal Tribunal was entitled to substitute its own conclusion or should have remitted the case to the Tribunal for further factual determination.

Court's reasoning and conclusions: The Court of Appeal held that the Tribunal had stated the correct subjective test (the Cox test) but did not apply it to the central question whether, viewed from the respondent's perspective and career history, it was unreasonable to return to hospital-based duties after more than 23 years in community nursing. That omission was an error of law. The EAT was also criticised for importing the unfair dismissal "band of reasonable responses" test (Iceland Frozen Foods v Jones) into the section 141 analysis and for replacing the Tribunal's conclusion without remitting. Because the question of reasonableness under section 141 is essentially a matter of fact for the Tribunal, the Court concluded remittal was necessary and allowed the appeal, remitting the case to the Employment Tribunal for reconsideration in accordance with the correct legal test. The Court also noted the protracted procedural history and emphasised the proper scope of the EAT's substitution power.

Appeal allowed. The Employment Tribunal applied the correct subjective Cox test in principle but erred in law by failing to address the respondent's core reason for refusing the hospital post (her long career in community nursing and objection to returning to hospital work). The Employment Appeal Tribunal also erred by importing the unfair dismissal 'band of reasonable responses' test and by substituting its own conclusion rather than remitting for fact-finding. The matter is remitted to the Employment Tribunal for reconsideration applying the correct legal test.

Employment Tribunal (Taunton) decision sent 22 September 2009 with reasons dated 29 October 2009 (found respondent not entitled to redundancy payment). Employment Appeal Tribunal allowed the respondent's appeal and substituted a finding of entitlement (decision dated 1 December 2011) and refused an application to review (13 April 2012). The Trust appealed to the Court of Appeal, which gave judgment [2013] EWCA Civ 1110 on 6 February 2013 allowing the appeal and remitting the matter to the Employment Tribunal.