Appeal No.EAT/1101/01 SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 October 2002

Before
THE HONOURABLE MR JUSTICE WALL
MISS A GALLICO
MR S M SPRINGER MBE

MRS SYLVIA BARTSCH & OTHERS	APPELLANT

ST HELENS AND KNOWSLEY HOSPITAL NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR STEPHEN PINDER
(Solicitor)
Instructed by:
Messrs Edwards Abrams Doherty Solicitors
125/131 Picton Road
Liverpool L15 4LG	
For the Respondent	MS ANNE WHYTE
(of Counsel)
Instructed by:
Messrs Hill Dickinson Solicitors
Pearl Assurance House
Derby Square
Liverpool L2 9LX	

THE HONOURABLE MR JUSTICE WALL

1	We have before us appeals in two test cases (out of a total of some 16 Originating Applications raising the same issues) heard by the Employment Tribunal sitting at Liverpool on 27 June 2001. The applicants before the Tribunal were all community midwives employed by the St Helens and Knowsley Hospital Trust (the Trust). They all alleged unfair dismissal and / or breach of contract arising out of the Trust’s attempt to reorganise the pattern of shift working in its Community Midwifery Service in September 2000.  For present purposes, we are concerned with two particular cases, those Mrs Sylvia Bartsch and Mrs. Catherine Williams (the Appellants).

2	The hearing before the Tribunal was, in effect, the hearing of a preliminary issue, designed to determine (1) what the terms and conditions of the Appellants’ employment were; and (2) whether or not in seeking to vary those terms, the Trust had acted in breach of those terms and conditions.

3	These issues arise out of shift patterns worked by community midwives employed by the Trust.  During 2000 changes were made to the shift patterns and were implemented by the Trust on 3 September 2000.  The group of midwives, with whom the Tribunal was concerned, did not agree to the proposed changes and made their objections to them clear to the Trust.

4	The Appellants’ case was that by imposing fresh terms and conditions on them, the Trust was acting in breach of contract, sufficient to constitute constructive dismissal.  In the event, however, the allegation of constructive dismissal was not pursued and the matter proceeded before the Tribunal on the allegation that the Trust was in breach of contract.

5	In the forms IT1 there is a suggestion that there was little or inadequate consultation with individual employees, or with the Applicants’ union but we have to say that in our view – and this is not a matter crucial to the outcome – it appears clearly from the Form IT3 put in by the Trust, that these changes were discussed over a very substantial period indeed, beginning in July 1999 and postponed several times before their final implementation.

6	In the forms IT1 the case was put in this way:

“The hours of work involved the Applicants working a 9 days fortnight with each working day being of 8 hours and 20 minutes in duration.  Rotas were fixed so that the Applicants knew the days and hours to be worked.  The Applicants would be on call outside of normal working hours for about 3 or 4 days each month.  The Respondents provided assistance with a home telephone line and calls relating to work.  Weekend work included additional payments for all hours worked.
The Respondents have altered the days and hours of work to provide for a 5 days week of 7 hours 30 minutes, with weekend work being 1 weekend in 3.  This variation means that the Applicants now work on different days leading to a change in the contract and inconvenience for the Applicants.  When the Applicants are on call the period of call duty is now longer than in the past, and the on-call arrangements have now changed so that the Applicants do not know when on-call work will be required.  Further, if the Applicants work at a weekend the shift is of shorter duration and the enhanced payments are therefore received at a lower level.”

7	There were other incidental allegations about use of telephones and so on, which are immaterial to the present dispute. The relief sought by the Applicants was a declaration as to the terms and conditions on which they were employed. 

8	The Trust put in a careful and detailed response to the claim.  It dealt first of all with the very substantial level of consultation which there had been and recorded the implementation of the changes as follows:

1	“On the 3rd September 2000, the following changes were implemented: – 
-	7hr 30min day as opposed to 8hr 20min day,
-	Standardisation of annual leave entitlement; i.e. 35 days as opposed to 33 days,
-	Out of hour’s on-call ceased being provided by the community midwives in mid September 2000 – this was now to be covered by hospital midwives between the hours of 16.30 to 08.30 hours.”
2	There has been no breach relating to shift times which are not expressed as a contractual term.  Midwives continue to work a 37.5 hour week/75 hour fortnight as required by contract.
There has been a reduction in weekend work for some midwives but not for all.  In fact for some staff weekend duties will increase.  However, management has agreed to implement protection arrangements where appropriate should any staff suffer a financial detriment as a result of the changes to weekend working.”

9	Before we turn to examine the reasons given by the Tribunal, we were puzzled and somewhat concerned about the lack of documentation available to assist in working out what the Appellants’ contractual terms were prior to September 2000. However, during the course of the hearing, we have been helpfully provided with a number of documents which we find material to the outcome, and to some of which we will refer.

10	The Tribunal found that the Trust had not breached or terminated the contracts of employment of either of the Appellants and that the terms and conditions upon which they were employed were those set out “in the various collective agreements regulating their employment”.  This we have to say is somewhat delphic.

11	The words “collective agreements” have, we think, led to an element of confusion, hence our wish to see the underlying documentation.  That which has been produced is, we think, helpful and puts the issue in context.  We propose briefly to read from some of the documents we have been provided though by no means all of them.

12	We have the appointment document for Mrs Bartsch dated 20 November 1980.  This describes her employment as “Community Midwife” and identifies her place of work as follows:
“Your working base will be Home
but you may be required to work at other Hospitals or Areas within the Area Health Authority.”

As far as conditions of service are concerned, the contract provides that:

“Rates of pay and general conditions of service are laid down by Whitley Councils; together with any terms and conditions imposed by the Authority.  These may be seen on request to your Senior Nursing Officer.”

13	We also have a letter dated 6 January 1987, addressed to another Community Midwife, Mrs McDonald.  This reads, in the first paragraph:

“I am pleased to inform you that your application for the post of Community Midwifery Sister has been successful.  The appointment with effect from 29th March 1987 is full time to the Community Midwifery Service.  Your working base will be Whiston Health Centre.  You may also be required to undertake duties within the hospital service day or night duty if service requirement indicate the need.

Slightly later on in the letter:

“Hours of duty are a 75-hour fortnight being 33 hours. 20 min. one week and 41 hrs. 40 min. the next week.  Annual leave is 33 days.”

14	Mrs McDonald’s Statement Of Terms And Conditions Of Employment makes it quite clear that, whilst her working base is Whiston Health Centre, she may be “required to work at other Hospitals or Areas within the District Health Authority”. The Trust may also “change (her) base within the District” and once again the terms stipulate: “your appointment is subject to the terms and conditions of service of the Nurses and Midwives Council as amended from time to time”.  Hours “Your normal hours of work are 37½ per week”.

15	The relevant portion of the Whitley Council is the hours of duties in section 3 and, for this purpose, I think it is sufficient to read simply 3.1:

3.1	“The normal working hours for all whole-time nurses are 37½ per week (or 75 per fortnight) day or night, exclusive of meal times, (except when the provisions of paragraph 9.19 apply) subject always to the requirements of the service.”

It is, we think, significant that throughout that document, almost every sub-clause includes the phrase “subject always to the requirements of the service”.

16	We also have, finally, a letter dated 24 March 1994 which once again deals with the change in shift patterns which occurred at that time.  On that occasion the Trust wrote to its employees:

“You will be aware that proposals were put in October 1993 for a suggested change in the shift pattern to reflect changes recommended in relation to the Government publication “Changing Child Birth”.
The effect of these alterations is that the requirement to include weekend duty in the weekly rota will occur once a month instead of the current two occasions.
Following consultation process it has now been agreed to implement the revised rota system from week commencing 1 April 1994.  New rotas have been drawn up by staff to reflect these changes.
Staff have expressed concern over the possible consequent loss in pay for the reduced enhancements.  In this regard it is confirmed that short term protection under section 47 of the General Whitley Council provisions will apply.”

The scale on which that is to occur is then set out.  That is, we think, a reasonably clear indication of the manner in which the changes occurred in 1994.

17	We move now to the decision of the Tribunal.  Only a limited amount of evidence was called.  Both Applicants gave evidence, as did Mrs Hewell, who was the head of Midwifery Services at the Trust.  On the basis of the evidence they heard and the documents they read the Tribunal made a number of findings of fact.

18	They dealt first of all with Mrs Bartsch’s employment from November 1980 and commented that at that point she was informed at her interview she would work 8.30 to 5.30 each day with 40 minutes lunch break (i.e. 8 hours, 20 minutes per shift) and was further told she would work nine working days each fortnight.  As it turned out the Tribunal found she never worked such a shift pattern, rather she worked four days, four days and six days per week in a three-week shift pattern.

19	Mrs. Williams commenced work as a Community Midwife in January 1987. She was provided with a letter of employment informing her that her hours of duty were 75 hours a fortnight, 33 hours and 20 minutes 1 week and 41 hours and 40 minutes the next.  This was achieved by working the sort of pattern that had clearly been intended for Mrs Bartsch, namely five days and four days in alternate weeks, 8 hours, 20 minutes a day.  That situation changed for her in 1994.  She contended that thereafter she had regularly worked the four-four shift system, referred to in relation to Mrs Bartsch.  Both Appellants informed the Tribunal that the advantage of the four-four-six pattern was that they could take the same day off work each week.  They would be automatically on the rota to work weekends every third week and would be paid an unsocial hours payment, effectively overtime, dependent on the hours worked at the weekend.  In addition there were routinely on the rota for on-call duties.

20	The Tribunal found that from September 2000, the Trust directed the Appellants to work a 7½ hour day which would simply be ten days in each fortnight.  This would mean that they could not have a regular specific day off per week.  It also meant that they would still undertake the same amount of weekend work but their unsocial hour payments would be lower because they would be based on a 7½ hour day rather than 8 hour 20 minute day. The decision had been taken at that time to utilise the hospital’s own midwives for on-call provision.

21	The Tribunal went on to record the submission made on the Appellants’ behalf that specific contractual terms existed within the contract in relation to these matters. The Appellants had not consented to any variation, and the Trust was not entitled to impose such a variation unilaterally.  Accordingly, since the original terms still existed the Appellants, it was argued were entitled to a declaration to that effect.

22	The Tribunal then went on deal with the argument that the existence of the four-four-six rota had been established. It found this difficult on the evidential basis presented to it.  That, we think, was because the appellants themselves were confronted, at quite short notice, with relatively recent rotas (September 1999 to March 2000) which demonstrated that the four-four-six patters was not being regularly worked by either of the Appellants.

23	We think the reason for this may well have been that within the rotas themselves there was a substantial degree of flexibility and midwives regularly swapped with each other.  In any event, we do not think this point determinative for the purpose of this appeal, and we are content to proceed on the basis there was, as a process, a regular four-four-six system of working.

24	In paragraph 12 of its reasons, the Tribunal found that nothing which the Appellants actually did in the performance of their duties could have brought into effect, by custom or practice, a term of the contract that did not already exist.  No doubt it made that finding on the basis of the rather inconclusive evidence, notwithstanding the fact that evidence had been given by Mrs Hewell as to the nature of the terms of the shifts. This would appear to indicate that there was actually little dispute on the evidence about the shift patterns themselves.  In any event, as we have already indicated, we are content to proceed on the basis that there was a four-four-six pattern.
25	The Tribunal then went on to reach the following conclusions: -

13	However, each of the applicants did have an express term relating in some way to the pattern of work. That term was oral in the case of Mrs Bartsch and in the letter of appointment in the case of Mrs. Williams. 
14	However, in neither case did the applicant claim that she continued to be bound by that term. It was departed from immediately in the case of Mrs. Bartsch and in 1994 in the case of Mrs. Williams. 
15	Again, had the applicants been able to establish the existence of an unchanging pattern thereafter, then it might have been open to them to argue that there had been a variation, albeit at that time with their consent, into t hat new pattern. 
16.	For the reasons set out above, we do not consider that was the case. There was not a variation of any such term, but rather an abandonment of it.
17.	The manner in which the contract was performed before September 2000 was consistent with all of its  express terms. Such was also the situation in relation to the post-September performance. 
18.	In the absence of an implication of a term to the contrary, it must follow that the Respondents did not breach the contract of the Applicants contracts in directing that the contract would in future be carried out in the way they directed.
19	The situation in relation to the “ancillary” elements of any terms as to rota is the same: there was no obligation on the Trust to offer any specific number of hours “overtime” or to retain a specific number of hours of work per shift, nor was there an obligation on the Trust to allow the applicants a particular day off work in each week.

26	The Tribunal therefore concluded that:

23	“…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.
Specifically, there are no terms of their employment obliging the Trust to offer them work under any particular shift patters, or “on-call” work.”

27	When this matter was before this Tribunal on an interlocutory basis for its Preliminary Hearing, the EAT identified essentially two points which it said were arguable in relation to the Tribunal’s judgment.  The first was whether or not the Tribunal had made sufficient findings of fact as to what the terms of the contracts of employment of the Applicants actually were in September 2000, by reference to collective documents or otherwise.  Secondly, whether the Tribunal misdirected itself 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.

28	Those are points which have been taken again today with force by Mr Pinder on behalf of the Appellants and we agree with him to the extent that we think it would have been helpful if the Tribunal, at the outset, had set out what it meant by various collective agreements and had examined those documents in  detail.

29	Nonetheless, at the end of the day, and having heard argument from both sides, we are satisfied that the Trust has not acted in breach of contract in imposing a variation in the shift patterns and that accordingly the appeal has to be dismissed.

30	In our judgment, it is plain that the 75 hours a fortnight, which are an express term of each contract, were also, as paragraph 3 of the Whitley documents requires, “subject always to the needs of the service”.  In our judgment, therefore, it must follow that the shift patterns themselves are also subject to the requirements of the service and are variable as and when the needs of the service require them to be varied.

31	In our judgment, an implied contractual term, that it was for the midwives to determine the shift patterns, cannot be read into these contracts.  No doubt within the shift patterns themselves there was a substantial degree of flexibility and individual midwives no doubt swapped individual slots with each other: hence perhaps, as we indicated earlier, the difficulty in establishing a four-four-six pattern at any one time.  But in our judgment a clear distinction is to be drawn between the structure of the shift pattern and the manner in which it was operated.

32	It was, in our view, plainly open to the Trust, as employer, to determine the shift pattern.  No doubt this was done after consultation and would preferably be implemented by agreement; but plainly the Trust had to be free to vary the shift patterns as and when the service required that to be done. .

33	Thus, in our view, the contractual term for a 75-hour fortnight plainly implies that there would be shifts worked within those 75 hours and the determination of the shift patterns within those 75 hours is a matter for the employer to lay down and to vary as necessary.  The fact that a particular shift pattern has been worked over a substantial period of time, or that a Community Midwife such as Mrs McDonald had been engaged to work on a particular shift pattern which then changed, is in no sense, in our judgment, determinative of the issue.  If the needs of the service require a variation, it was contractually open to the Trust to impose it.

34	In our judgment, therefore, the Applicants have not established a contractual term, express or implied, which permits them either to insist on a particular shift pattern or to treat any proposed variation as a breach of contract and for these reasons the appeal must be dismissed.