Appeal No. UKEAT/0074/11/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 June 2011
	   Judgment handed down on 21 July 2011

Before
THE HONOURABLE MR JUSTICE KEITH
MS K BILGAN
MR J MALLENDER

MS L BIRD	APPELLANT

STOKE-ON-TRENT PRIMARY CARE TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ANDREW J McGRATH
(of Counsel)
Instructed by:
Messrs Thompsons Solicitors
The McLaren Building
46 Priory Queensway
Birmingham
B4 7LF	
For the Respondent	MR TIM SHEPPARD
(of Counsel)
Instructed by:
Mills & Reeve LLP Solicitors
78-84 Colmore Row
Birmingham
B3 2AB	

SUMMARY
REDUNDANCY – Suitable alternative employment

The employee was dismissed for redundancy, but she did not receive a redundancy payment on the ground that she had unreasonably refused offers of suitable alternative posts.  In determining that one of the posts was suitable for her, the Tribunal was held to have failed to take into account two features of the evidence which were relevant to whether the post was suitable for her.   In determining that the employee had unreasonably refused the offer of that post, the Tribunal was held to have substituted its own view about the reasonableness of the reasons for her refusal, rather than considering whether someone in her particular circumstances could reasonably have taken the view of the alternative post which she did.   

THE HONOURABLE MR JUSTICE KEITH 
Introduction
1.	The Claimant, Ms Lesley Bird, was employed by the Respondent, the Stoke-on-Trent Primary Care Trust (“the Trust”), in a role with both managerial and clinical responsibilities.  She was dismissed for redundancy on 30 November 2007.  The Trust declined to pay her a redundancy payment because prior to her redundancy she had refused – unreasonably so the Trust claimed – offers of alternative employment which the Trust claimed were suitable for her.  She presented a claim for a redundancy payment to the Employment Tribunal, but following a hearing over three days at an Employment Tribunal in Birmingham, her claim for a redundancy payment was dismissed.  She now appeals against the dismissal of her claim.

The facts
2.	Ms Bird’s employment was originally with the North Stoke Primary Care Trust.  It began on 2 August 2004.  She is a physiotherapist by profession, and her job title was Clinical Lead Therapy Musculoskeletal Services.  She was based at Haywood Hospital.  The post involved the management of a team of some 25 or so physiotherapists and occupational therapists, and the breakdown of her management and clinical responsibilities were such that for 80% of her time she had a management role and only 20% of her time was devoted to clinical care.  Although the post was essentially a managerial one, the advertisement for the post had said that the successful candidate would “have career aspirations to be a Physiotherapist Consultant”, and the role would provide “leadership, operational research and development and teaching opportunities … to allow you to realise your ambition”.  In the grading system which was then in place, the post was a Superintendent 1 post.  Ms Bird reported to the Head of Therapy Services, though the following year after the departure of the Head of Therapy Services, Ms Bird reported to the Hospital Manager.

3.	These facts come from the Tribunal’s reasons, but what the Tribunal did not refer to were the strategic and regional responsibilities Ms Bird had.  The job description of the post said that her responsibilities included ensuring that the physiotherapists and occupational therapists she managed played an active role in the provision of therapy services in the area, and assisting in the development of working methods to support the modernisation of musculoskeletal services both at the hospital she worked at and throughout Stoke-on-Trent.  Mr Andrew McGrath for Ms Bird said that those responsibilities emphasised the high status of the post, but whether they really added anything of significance we cannot say.

4.	In late 2004 and early 2005, a substantial reorganisation took place within the National Health Service.  It was called Agenda for Change, and it resulted in a new framework for terms and conditions of staff and the introduction of a new grading system.  Ms Bird’s post was assessed at grade 7 under the new grading system.  She appealed against the grading of her post, but her appeal was unsuccessful.

5.	In 2006, the North Stoke Primary Care Trust merged with the South Stoke Primary Care Trust.  The merged body was the Stoke-on-Trent Primary Care Trust, and it became Ms Bird’s employer.  The merger resulted in a restructuring of all managerial positions within the Trust.  A number of new posts were created, and a number of existing posts would disappear.  If staff whose posts were at risk of disestablishment could show that a new post was substantially the same as their existing one, they were entitled to transfer to it.  Otherwise, staff whose posts were at risk of disestablishment could apply for whatever posts were available.  Those who were unsuccessful in that process were guaranteed a period of employment, but if no suitable post could be secured for them, they would eventually be made redundant.

6.	Ms Bird’s post was identified as one of the posts at risk of disestablishment.  She did not apply for any of the posts which were then available because they were exclusively managerial posts and had no clinical element.  She decided to wait for a post to become available with “the right mix of clinical and management content”.  Her aim when she had joined the North Stoke Primary Care Trust had been to become a consultant physiotherapist, and the Tribunal found that someone could realise that ambition from a variety of career paths, including one in which their latest post was a purely managerial one.  Ms Bird’s post-graduate degree was an MBA rather than a clinical one, and that had not prevented her from securing a post which had been identified as suitable for someone who aspired to be a consultant physiotherapist.  The Tribunal acknowledged that a consultant was required to be registered as a clinical practitioner, but it was possible for someone in a purely managerial post to satisfy the requirements of their professional body for the retention of their registration.

7.	Since Ms Bird did not apply for any of the posts which were available, it was up to the Trust to offer her such posts as it thought might be suitable for her.  The Trust’s view was that clinical posts could be suitable alternatives for those whose existing posts had had both clinical and managerial elements.  Indeed, its view was that many clinical posts included managerial elements.  It was against that background that on 26 March 2007 the Trust offered three posts to Ms Bird, all of which were at grade 7.  One was that of physiotherapist at Haywood Hospital.  We imagine, though we cannot be sure, that that was a purely clinical role, but the other two posts (whose job titles were Physiotherapy Clinical Specialist and Senior 1 Physiotherapist) had either managerial or clinical leadership elements to them.

8.	The job descriptions for each of these two posts were lengthy documents.  The post holders in each case would be accountable to the Manager of Therapy Services and would report to the Trust’s Superintendent Physiotherapist.  Each of the job descriptions contained, amongst other things, a job summary and a list of the key responsibilities of the post.  The job summary for the post of Physiotherapy Clinical Specialist (which to confuse matters was also called Clinical Specialist Musculoskeletal/Physio Direct Community) read:

“1) To lead, support and co-ordinate the ongoing development of Physiotherapy Direct Service utilising highly specialised skills and knowledge within the post holder’s area of expertise.  
2) To assist, diagnose, problem solve review and discharge patients using highly specialised clinical expertise.  This post includes a minimum of 80% highly skilled and specialist clinical and requires post holder to adapt to unpredictable changes and demands on the service.”

Amongst the key responsibilities of the post was to 

“… act as the Physiotherapy Service clinical community specialist adviser in post holder’s area of clinical expertise providing verbal and written support to a wide range of staff with the Physiotherapy Service as well as staff from other professions within the Health Service.  This may include one to one advice or informal or formal teaching to individuals or groups”.

The job description did not state where the post holder would be based, but the Tribunal found that he or she would be based at Bentilee, which we assume was the site of a local hospital.

9.	The job summary for the post of Senior 1 Physiotherapist read:

“1) In conjunction with the Superintendent Physiotherapist, provide strong, visible professional and clinical leadership to the Physiotherapy team managed by the post holder within the community Physiotherapy Service of Stoke on Trent PCT.  
2) Operationally responsible as the clinic and professional lead for the provision of Physiotherapy within the post holders team.  This post includes a minimum of 85% highly skilled clinical work and requires post holder to adapt to unpredictable changes and demands on the service.  Specialising in domiciliary work and musculoskeletal outpatients in the primary care settings, the post holder may also be required to work on the Physiotherapy Direct Service.”

The job description stated that the post holder would be based at Longton Cottage Hospital, which the Tribunal found was closer to Sheffield where Ms Bird lived than Haywood Hospital.

10.	Ms Bird informed the Trust that none of these posts were suitable.  Initially she did not say why, but on 25 April 2007 she gave the Trust her reasons for thinking that.  The Trust accepted that the post of physiotherapist was not suitable, not least because Ms Bird would have been working in a clinical setting alongside colleagues for whom she had previously been responsible.  As for the other two posts, the Tribunal found that Ms Bird had told the Trust that the post of Physiotherapy Clinical Specialist might be acceptable if training and development (we are not quite sure what the latter meant) were available to enable her to achieve the level of skills and competencies required, but that she did not believe that the necessary skills and competencies required for the post of Senior 1 Physiotherapist could be acquired by her with training in an acceptable timescale.

11.	We are a little troubled by that finding.  It suggests that Ms Bird was saying that the posts were unsuitable only because she did not then have the skills required for them.  That does not sit comfortably with what Mr McGrath (who represented Ms Bird at the hearing in the Tribunal as well) told us had been the nub of her case.  That was (a) that she could have done both jobs “falling off a log”, and (b) that if she accepted either of these posts, she would be moving from managing a team of physiotherapists and occupational therapists to being managed within a team.  She could no longer say that she was a manager within the National Health Service.  That was neither accepted nor disputed by Mr Tim Sheppard who represented the Trust on the hearing of the appeal, though it is fair to say that he did not represent the Trust at the hearing in the Tribunal, and we do not think that there was a representative of the Trust at the hearing of the appeal from whom Mr Sheppard could obtain instructions.  In the circumstances, we have to proceed on the basis that what Mr McGrath told us was accurate.  Interestingly, what Mr McGrath says her case was is supported, in part at any rate, by the Tribunal noting that in her evidence to the Tribunal Ms Bird had said that it had in fact always been her view that, given suitable training, both posts were comfortably within her professional competence.

12.	On 30 April 2007, Ms Bird commenced a period of sickness leave.  She had a stress-related illness.  She was never to return to work.  Her illness may have had something to do with a grievance which had been raised against her by members of the physiotherapy team at Haywood Hospital about her management style which was described as bullying.  In January 2007, Ms Bird herself made a complaint of unprofessional behaviour about one of her colleagues, and the Trust decided that both the grievance against her and her complaint should be investigated together.

13.	While she was on sick leave, Ms Bird had a meeting with Mrs Helen Duffy about the posts she had been offered.  Mrs Duffy was the Trust’s County Hospitals Manager at the time of the hearing in July 2010, though whether that was her post in 2007, we do not know.  Ms Bird was concerned about the status of the posts, and pointed out that she would have to report to people who had been in posts with lower grades than hers under the old grading system.  Mrs Duffy said that the old grading system no longer applied, and that the posts which Ms Bird had been offered were at the grade of her current post under the new grading system and matched Ms Bird’s skills.

14.	Ms Bird’s union, UNISON, took up her case.  Their representations on Ms Bird’s behalf focused on the two posts which the Trust was still claiming were suitable for her.  They said that the skills and competencies required for the post of Senior 1 Physiotherapist were not achievable by Ms Bird even with training within an acceptable time scale, but in relation to both posts, the Tribunal described the points UNISON had made as being “(1) lower status (2) different balance of clinical and management responsibilities and (3) career setback”.  We understand (2) very clearly.  Ms Bird’s existing post was principally a managerial post (with only 20% of her time to be spent on clinical care), whereas the two posts she was being offered were principally clinical posts (with in one case 20% of her time, and in the other only 15% of her time, to be spent on management).

15.	We are not quite sure what (1) was referring to.  It could have been that in the posts she was offered she would be accountable to staff at a lower level than the Hospital Manager to whom she was reporting in her existing post.  It could have been that the holders of the posts to whom she would have been accountable would have been in posts with lower grades than hers under the old grading system.  It could have been that she would be moving from managing a team of physiotherapists and occupational therapists in a post in which she could legitimately say that she was a manager within the National Health Service to a post in which she was being managed within such a team.  It may be that a combination of all three was being referred to.  But the upshot of it was that she declined to accept either of the posts, and she was therefore dismissed for redundancy.

16.	We should record that if Ms Bird had been entitled to a redundancy payment, it would not have been limited to the statutory redundancy payment, which in her case would have amounted to £7,750.00.  She would also have been entitled to the contractual redundancy payment available to National Health Service staff as a result of changes to their terms and conditions effected by Agenda for Change, unless she had “unreasonably refuse[d] to accept or apply for suitable alternative employment with the same or another NHS employer”.  The Tribunal said that if she had been entitled to a contractual redundancy payment, it would have been in the region of £70,000.00.  That was not an unimportant consideration because the Trust’s case was, to use the Tribunal’s own words in para. 39.5 of its reasons,

“… that Ms Bird had become disaffected because of the various changes which affected her, and especially her failure on appeal to secure the re-banding of her post, and had determined to secure the very substantial cash sum which could come to her upon redundancy.  She therefore simply refused to engage in the process of seeking alternative employment, and invented a series of pretexts to avoid accepting posts which were suitable for her.”

The Tribunal’s conclusion on the topic was this:

“We considered this submission with care.  There is a good deal of support for it in the evidence.  However, Ms Bird strenuously denied it, and we did not feel able to make it as a finding of fact.  However, we concluded that her approach to the process of consultation with [the Trust] was much affected by her knowledge that such a large sum might be available to her.”

So whatever the Tribunal’s suspicions may have been, they should have played no part in the Tribunal’s assessment of whether Ms Bird’s refusal of the offers was reasonable since the recoupment of this sizeable sum was not found to be the reason why she had refused the offers.

The legal framework
17.	In the light of sections 141(2) and 141(3)(b) of the Employment Rights Act 1996, the questions for the Tribunal were whether the offers of either of the two posts constituted offers of suitable employment for Ms Bird, and whether her refusal of either of those offers was reasonable.  Apart from occasional cases which have suggested otherwise – of which the decision of the Employment Appeal Tribunal in Scotland (Lord McDonald presiding) in Tocher v General Motors Scotland Ltd [1981] IRLR 55 at [13] is one – the law has always been that those two questions have to be considered separately: see, for example, the decision of the Employment Appeal Tribunal (Wood J presiding) in Knott v Southampton and South-West Hampshire Health Authority [1991] ICR 480 at pp 485G-486B.  But that does not mean that the two questions are completely unrelated.  The more suitable the offer, the easier it may be for the employer to show that the employee’s refusal of the offer was unreasonable: see the decision of the Employment Appeal Tribunal (Judge Peter Clark presiding) in Commission for Healthcare Audit and Inspection v Ward (UKEAT/0579/07/JOJ) at [18].  It was for the Trust to prove the suitability of at least one of the posts for Ms Bird and the unreasonableness of her refusal of it.

18.	Since the grounds of appeal criticise how the Employment Tribunal approached both these questions, it is necessary to identify what the correct approach to them is.  The issue of suitability is conveniently (and correctly) summarised in Harvey on Industrial Relations and Employment Law, Vol 1, Division E, Issue 204, para. 1489, which reads:

“Under ‘suitability’ you must consider the nature of the employment offered.  It is for the tribunal to make an objective assessment of the job offered (Carron Co v Robertson (1967) 2 ITR 484, Ct of Sess).  It is not, however, an entirely objective test, in that the question is not whether the employment is suitable in relation to that sort of employee, but whether it is suitable in relation to that particular employee.  It comes really to asking whether the job matches the person: does it suit his skills, aptitudes and experience?  The whole of the job must be considered, not only the tasks to be performed, but the terms of employment, especially wages and hours, and the responsibility and status involved.  The location may also be relevant, because ‘commuting is not generally regarded as a joy’ (Laing v Thistle Hotels Plc [2003] SLT 37, Ct of Sess, per Lord Ordinary Eassie).  No single factor is decisive; all must be considered as a package.  Was it, in all the circumstances, a reasonable offer for that employer to suggest that job to that employee?  And the sole criterion by which that is to be judged is ‘suitability’.” 

There has been talk in some of the cases that the new post should be “substantially” or “broadly” equivalent to the existing one (see, for example, Lord Parker CJ in Taylor v Kent County Council [1969] 2 QB 560 at p 566B and Lord Eassie in Laing), but that was doubted – correctly, we think – by Bridge J (as he then was) in Collier v Smith’s Dock Co Ltd (1969) 4 ITR 338 on the basis that it puts an unwarranted gloss on the statutory language.  In other words, the fact that the post which is being offered is different from the employee’s existing post does not necessarily mean that it is unsuitable for that employee, but by analogy with the approach in Ward, the more different the posts are, the more difficult it may be for the employer to show that the post which is being offered is suitable for the employee.

19.	The issue of reasonableness is also conveniently (and correctly) summarised in Harvey, op. cit., para. 1552:

“The question is not whether a reasonable employee would have accepted the employer’s offer, but whether that particular employee, taking into account his personal circumstances, was being reasonable in refusing the offer: did he have sound and justifiable reasons for turning down the offer?”  

As the Employment Appeal Tribunal (Phillips J presiding) said in Executors of J F Everest v Cox [1980] ICR 415 at p 418C, the question whether the employee had sound and justifiable reasons for refusing the offer has to be judged from the employee’s point of view, on the basis of the facts as they appeared, or ought to have appeared, to the employee at the time the offer was refused.

20.	In Cambridge and District Co-operative Ltd v Ruse [1993] IRLR 156, the Employment Appeal Tribunal (Judge Hague QC presiding) said that loss of status was a factor which could make the employee’s refusal of the offer reasonable.  It also said at [18] that “as a matter of law, it is possible for the employee reasonably to refuse an objectively suitable offer on the ground of his personal perception of the employment offered”.  Indeed, that could be so even if other people think that “the personal perception” of the employee might be wholly unreasonable.  That was not the case in Ruse because the industrial tribunal had merely found it possible that “he was being a little sensitive”.  But an employee’s refusal of an otherwise suitable offer can still be said to be reasonable when he personally thinks that the post he is being offered involves a loss of status, even if that view might be groundless in the eyes of others, provided that it is not groundless from his point of view.  An illustration of that was Denton v Neepsend Ltd [1976] IRLR 164.  A cold saw operator was offered alternative work on an abrasive cutting machine.  The use of such a machine could generate a certain amount of dust, fumes and vapours, as well as some metal fragments, and the employee had something of an obsession about the possible hazards of exposure to them.  His father-in-law had died as a result of chest trouble, and his own father had suffered from pneumoconiosis.  Although the tribunal found that the new job was suitable for the employee, and although his fears about the danger of exposure to these hazards may have been groundless since his employers had complied with the relevant safety legislation, his refusal to work on the new machine was held at [12] to be reasonable since he “was being asked by his employers to undertake a completely different working environment in the sense that he might be exposed to fumes, vapours, dust and metal fragments to which he would not be exposed while working the cold saw …”  We think that this sentence suggests that the tribunal had in effect found that the new job had not been suitable (despite its purported finding to the contrary) for this particular employer with his understandable fears given his family history.  But whether that is right or not, the case supports the view that the employee’s reasons for refusing the offer had only to be “sound and justifiable” from the employee’s point of view, even if others might not have thought that his reasons were sound and justifiable.

The Tribunal’s mix-up
21.	The Tribunal purported to consider first the post of Physiotherapy Clinical Specialist.  It concluded that the offer of the post was an offer of suitable employment for Ms Bird, and it regarded her refusal of that offer as “wholly” unreasonable.  It therefore dismissed her claim for a redundancy payment without considering the suitability of the offer of the post of Senior 1 Physiotherapist.

22.	However, it is common ground that when the Tribunal was purporting to consider the post of Physiotherapy Clinical Specialist, it got the two posts mixed up.  We begin at para. 18 of the Tribunal’s reasons where the Tribunal described the two posts for the first time.  It described the post of Physiotherapy Clinical Specialist as follows:

“Key elements of it were to provide visible professional leadership to the physiotherapy team; to be operationally responsible as clinical and professional lead for provision of physiotherapy, specialising in domiciliary and musculoskeletal out-patients; to assist if required with the Physio Direct and to assist if required with recruitment and retention of staff.”

The first two of those roles were taken directly from the job summary in the job description for the post of Senior 1 Physiotherapist.  Similarly, the Tribunal described the post of Senior 1 Physiotherapist as follows:

“Key elements of it were to lead, support and co-ordinate ongoing development of the Physio Direct Service; to assist, diagnose, problem-solve and discharge patients; to be clinical community specialist providing written and verbal support to staff; to provide one-to-one and group teaching; to carry out personal reviews of staff and to assist in business planning and service delivery.”

The first four of those roles were taken directly from the job summary and key responsibilities in the job description for the post of Physiotherapy Clinical Specialist.

23.	This error would not have mattered if it was only an error in the structure of the Tribunal’s judgment.  So if the Tribunal had had the correct job description in mind when it was considering whether the offer of the post of Physiotherapist Clinical Specialist had been suitable for Ms Bird and whether Ms Bird’s refusal of the offer had been unreasonable, no problem would have been caused.  The Tribunal addressed those issues in para. 39.2-39.7 of its reasons, and we have looked carefully at those paragraphs to see whether the Tribunal was in fact considering the post of Senior 1 Physiotherapist when it thought it was considering the post of Physiotherapy Clinical Specialist.  The Tribunal said four things about the post which it was considering:

(i)	It was the same grade as Ms Bird’s existing post.
(ii)	Ms Bird accepted that the post was within her professional competence.
(iii)	Under the old grading system, the post had typically been held by a Senior 1, which was a more junior grade to Superintendent 1, which had been the grade of Ms Bird’s existing post.
(iv)	The post was described as clinical (and contrasted with her existing post which had a high managerial content).

All of that applied just as much to the post of Physiotherapy Clinical Specialist as to the post of Senior 1 Physiotherapist.  In short, there is absolutely nothing to tell us, one way or the other, whether the error which the Tribunal made in para. 18 was replicated in paras. 39.2-39.7.

24.	But even if it had been, we ask rhetorically where that would leave Ms Bird’s case.  Although the Tribunal thought that it was considering the suitability of the post of Physiotherapy Clinical Specialist when on this hypothesis it was in fact considering the post of Senior 1 Physiotherapist, its findings amounted to findings that the offer of the post of Senior 1 Physiotherapist was suitable for Ms Bird, and her refusal of the offer of that post had been unreasonable.  A finding to that effect would have been sufficient to result in the dismissal of her claim.  It might have been different if there were significant differences between the two posts which she was offered, so that one may have been suitable for her but the other not, or if her reasons for refusing the offers were different, so that her refusal of the offer of one of the posts may have been reasonable, but the other not.  But Mr McGrath acknowledged that Ms Bird’s reasons for refusing both of the offers were the same, and the only relevant difference between the two posts which he could realistically point to was that the managerial content of one was 20% at the most compared to 15% at the most with the other.

25.	It follows that the error which the Tribunal made in transposing the two posts did not of itself make any difference to the outcome of the case, but that is not to say that the error can now be put to one side.  Since the Tribunal made a relatively simple error, it is necessary for us to look all the more critically at the other criticisms of the Tribunal.

The Tribunal’s approach to suitability
26.	The Tribunal noted that when you compared Ms Bird’s existing post with the new one it was considering, the posts were at the same grade.  It acknowledged that the new post it was considering had in the past been graded lower than it now was, but it said that Agenda for Change had no doubt produced many similar examples, and that was a consequence of a new system for grading posts.  There was, and could have been, no challenge to those findings.  Nor was there any doubt but that the Tribunal appreciated that the breakdown of managerial and clinical responsibilities in Ms Bird’s existing post was such that for 80% of her time Ms Bird had a managerial role and 20% of her time was devoted to clinical care, and that in the new post which the Tribunal was considering the breakdown was the very opposite.  Indeed, the Tribunal correctly noted that “suitable” does not mean “identical”.  But the Tribunal went on to say three things about the suitability of the new post which it was considering which are potentially problematical:

(i)	“Although the post was described as being clinical, we had found that the distinction between management and clinical was not in fact as clear cut as this suggests.  It is clear from its job content that the post did in fact contain a significant element of what in ordinary usage would be described as management duties” (para. 39.2).

(ii)	“Moreover, we remind ourselves that Ms Bird had expressly ruled herself out of contention for any of the management posts that were available” (para. 39.2).

(iii)	 “In our judgment, if Ms Bird had accepted the post, no sensible NHS onlooker would have thought that she had suffered a demotion” (para. 39.3).

27.	(i) was quite a surprising finding.  Looking at the job descriptions of both the new posts, there were clearly elements of both posts which involved a measure of clinical leadership, but we think it highly questionable for them to be described as containing an element of managerial duties, let alone a significant element of such duties.  It may have been different if there had been detailed evidence of what the new posts really involved, but the Trust did not suggest to us that there had been such evidence before the Tribunal.  In any event, even if the new posts could properly have been described as having an element – even a significant element – of managerial (as opposed to clinical leadership) duties, the fact remains that Ms Bird’s existing post was essentially a managerial one and the one the Tribunal was considering was an essentially clinical one.  We fear that the Tribunal did not factor the real difference between Ms Bird’s existing post and the post which it was considering into its consideration of the suitability for Ms Bird of whichever post it was considering.

28.	As for (ii), it is unquestionably the case that Ms Bird had not applied for purely managerial posts.  Instead, she had decided to wait for a post with the right balance of managerial and clinical responsibilities to come along.  But we do not think that that was relevant to the suitability of the posts which she was eventually offered.  Her unwillingness to be considered for purely managerial posts did not make the posts which she was eventually offered any more suitable than they would otherwise have been, bearing in mind that the Tribunal was required to focus on the nature of the posts which she was offered.  It would have been different if the Trust had offered her any of the purely managerial posts, and if it was her refusal of those posts which was said to have deprived her of her entitlement to a redundancy payment, but that was not the Trust’s case.  Having said that, Mr McGrath did not argue that in this respect the Tribunal took account of an irrelevant consideration, and we therefore say no more on the topic.

29.	As for (iii), one of the criticisms of the Tribunal is that by referring to what the sensible onlooker would have thought, the Tribunal substituted, for its own assessment of whether Ms Bird’s acceptance of the new post which the Tribunal was considering would have amounted to a demotion, the assessment of the “sensible NHS onlooker”, whose perspective may have been very different from that of the Tribunal.  We acknowledge that that is a possibility, and we agree that if that was what the Tribunal did, it would not have been a justifiable approach.  But it is equally possible that the Tribunal was simply testing its own view of whether Ms Bird’s acceptance of the new post which the Tribunal was considering would have involved a demotion by asking what someone in the National Health Service would have thought.  We cannot tell whether that was what the Tribunal was really doing.

30.	A more compelling criticism of the Tribunal, in our view, is that in considering whether Ms Bird’s acceptance of the new post would amount to a demotion, the Tribunal only considered some of the points made on Ms Bird’s behalf, and not the principal one.  In para. 39.3 of its reasons, the Tribunal dealt with her argument that by accepting the new post she would be managed by someone who she had expected herself to manage, and that under the old grading system, the new post had typically been held by someone at a lower grade than the grade for her existing post.  But the Tribunal did not refer to what Mr McGrath says was Ms Bird’s core point in the Tribunal, namely that she would be moving from managing a team of physiotherapists and occupational therapists to being managed within a team, and that she would no longer be able to say that she was a manager within the National Health Service.  That may have been because the Tribunal – erroneously, says Mr McGrath – mistakenly overlooked Ms Bird’s real case on loss of status, which is borne out by the opening words of para. 39.3 of its reasons: “Mr McGrath did not refer to the issue of status in connection with suitability …”  Mr McGrath told us that loss of status was at the forefront of the case he was advancing.  However, it may be that the Tribunal was alive to the importance being placed by Ms Bird on loss of status, but wrongly thought that it was relevant to the reasonableness of her refusal of the offers rather than to the suitability of the posts she was being offered.

31.	In summary, we think that the Tribunal’s decision on the suitability of the post it was considering might have been different if it had factored into the equation (a) the fact that Ms Bird’s existing post was essentially a management one and the new post essentially a clinical one, and (b) the argument that she would be moving from managing a team of physiotherapists and occupational therapists to being managed within a team and would not be able to say that she was a manager within the National Health Service.

The Tribunal’s approach to reasonableness
32.	The Tribunal thought that Ms Bird’s position had changed over time and had in certain respects been contradictory.  For example, the Tribunal noted (a) her earlier refusal of purely managerial posts, even though her existing post was essentially a managerial one, (b) her initial reluctance to explain why the new posts she was offered were unsuitable for her, (c) her initial claim that she could not carry out the duties of the new posts without training, which conflicted with her evidence that they were comfortably within her competence, and (d) her claim in evidence that the post of Physiotherapist Clinical Specialist “amounted to no more tha[n] manning a telephone helpline, as in a call centre”, which was plainly not the case.  But the Tribunal added in para. 39.6 of its reasons:

“If she had any perception of loss of status it was, as we have explained above, a quite irrational one, and we consider that there is an important distinction between a perception which is personal, and might not be shared with others, and one which in fact lacks any sensible basis.”

33.	The first few words suggest some scepticism of whether Ms Bird really did believe that her acceptance of the new post the Tribunal was considering involved a loss of status.  But since the Tribunal did not find that she did not believe that, we put that to one side.  The criticism of the Tribunal here is that by saying that her perception of loss of status was “a quite irrational one”, the Tribunal had failed to follow the accepted subjective test for deciding unreasonableness.  Indeed, if it said that once the Tribunal had not found that she had not genuinely believed that there would be a loss of status if she accepted the new post which the Tribunal was considering, the Tribunal should then have concluded that her refusal of the offer of that post was reasonable.

34.	We agree with the first part of the argument but not the second.  For the reasons in [19]-[20] above, the Tribunal had to look at the new post which it was considering from Ms Bird’s point of view.  It had to ask whether her reasons for concluding that her acceptance of the new post which it was considering would involve a lack of status were ones which she could reasonably regard as sound and justifiable.  The problem is that the Tribunal did not do that.  The contrast should not have been between “a perception which is personal, and might not be shared with others” and “one which in fact lacks any sensible basis”.  The contrast should have been between a personal view which might not be shared by others but which Ms Bird could reasonably reach given her particular circumstances, and a personal view which might not be shared by others but which Ms Bird could not reasonably reach even when viewed through the prism of her particular circumstances.  That is where the Tribunal went wrong.  By considering for itself whether Ms Bird’s acceptance of the new post it was considering involved a demotion, and by concluding that her view was irrational, the Tribunal was substituting its own view on the topic for Ms Bird’s view.  But it is not right to say that the only issue which the Tribunal had to address was the genuineness of her view.  The Tribunal had to consider whether her view was reasonable, and that question had to be answered by reference to whether someone in her particular circumstances could reasonably have taken the view she did.  We cannot say what conclusion the Tribunal would have reached if it had approached the issue in that way.

Conclusion
35.	Since the Tribunal’s approach to the two issues which it had to address was flawed, its decision cannot stand.  Ms Bird’s appeal must therefore be allowed, and the finding that she was not entitled to a redundancy payment must be set aside.  We have considered whether we should remit the case to the same Tribunal for it to reconsider the issues which it had to address in the light of this judgment, but we think that that would be inappropriate in the light of the Tribunal’s error in mixing up the two posts.  Apart from anything else, the Tribunal may be tempted, albeit completely unconsciously, to reconsider those issues in such a way as would not affect its ultimate conclusion about Ms Bird’s entitlement to a redundancy payment.  With some regret, because we do not want to put the parties to the trouble and expense of re-litigating the whole of the claim again, we have concluded that Ms Bird’s claim should be remitted for rehearing by a differently constituted Tribunal.