Sandford & Anor v Newcastle Upon Tyne Hospitals NHS Foundation Trust

In a dismissal and re-engagement case, the fairness of a dismissal for some other substantial reason is assessed under section 98(4) at the effective date of termination. Deficiencies in earlier consultation remain relevant but do not necessarily make the dismissal unfair.

The tribunal may take account of the extent to which affected employees accepted the proposed terms, whether alternatives to dismissal were reasonably explored, and the stance of the recognised trade unions. The question is one of fact within the band of reasonable responses. An appeal tribunal must not substitute its own assessment for that of the employment tribunal under the guise of perversity.

The claimants were among 22 employees whose posts were re-banded following a reorganisation. Twenty accepted the lower band with two years’ pay protection. The claimants refused, were dismissed on notice, and accepted re-engagement on the lower band without that protection.

An Employment Tribunal at Newcastle upon Tyne, in reasons promulgated on 16 March 2012, dismissed their unfair-dismissal claims. It found that the dismissals were for some other substantial reason and, despite inadequate collective and individual consultation, were fair under section 98(4) of the Employment Rights Act 1996.

The claimants appealed only the finding of fairness. They contended that the Tribunal had failed properly to take the consultation failures into account.

1. Appeal dismissed. The Employment Tribunal had directed itself correctly and reached a permissible, properly reasoned conclusion that the dismissals were fair.

2. The Tribunal was required to assess fairness under section 98(4) of the Employment Rights Act 1996 as at the effective date of termination in December 2010. The earlier failures to consult the claimants and their trade union, and breaches of the Agenda for Change procedure, were relevant background. They occurred well before the dismissal process and the Tribunal had not disregarded them.

3. The Tribunal was entitled to treat as material that 91% of the affected employees had accepted the new terms, that the employer had reasonably explored alternatives to dismissal, and that the trade unions had not opposed the changes. The Tribunal had not placed undue weight on employee acceptance.

4. Fairness in this context was a factual assessment within the band of reasonable responses. There was no legal misdirection, inadequate reasoning, or perversity. Intervention would have improperly substituted the Appeal Tribunal’s judgment for that of the Employment Tribunal.

5. The Employment Tribunal’s apparent finding concerning incorporation of the job-evaluation handbook into the individual contracts was immaterial to the appeal. The Appeal Tribunal made no comment on it.

• Employment Appeal Tribunal: Appeal dismissed; the Employment Tribunal’s dismissal of the unfair-dismissal claims was upheld.
• Employment Tribunal, Newcastle upon Tyne: In reasons promulgated on 16 March 2012, dismissed the claimants’ unfair-dismissal claims and their claims for unauthorised deductions from wages. Only the unfair-dismissal ruling was appealed.