Miss Z Charlesworth v Walsingham Support — 2021

Miss Charlesworth, a Staff Nurse who transferred from RDASH to Walsingham Support on 1 July 2019, argued that her Staff Nurse role had become redundant after the service moved from a residential care model to supported living. The tribunal found that, before the transfer, Gardens Lane was registered as a residential home rather than a nursing home, no service user had been assessed as needing nursing care, and most of the claimant's job description involved management, supervision and coordination rather than direct clinical work. The tribunal accepted that she did some limited clinical tasks, such as basic first aid, minor injury care, PRN medication and referrals, but found that these did not amount to a material body of nursing work that had ceased or diminished.

The tribunal held that the relevant work of a particular kind had not ceased or diminished, including when looking at the requirement to work partly from the respondent's registered office rather than exclusively from Gardens Lane. It found that the work done from the office was substantially the same managerial work already being done, that the office was within reasonable travelling distance, and that the mobility clause in the claimant's contract was relevant. The tribunal therefore rejected redundancy under s.139 ERA 1996 and also rejected the contention that the TUPE transfer itself was the sole or principal reason for dismissal under reg.7 TUPE. It found instead that the reason for dismissal was the claimant's refusal to accept the full requirements of the Deputy Manager role.

On fairness, the tribunal found that the respondent had a potentially fair reason for dismissal within s.98(1) ERA 1996, namely some other substantial reason, because the service model change required a reorganisation of how the work was done and the claimant's refusal created regulatory and contractual difficulties. Applying s.98(4), the tribunal held that the respondent acted reasonably: it consulted over a long period, adjusted the role title to Deputy Manager - Care, explored further changes with an interim consultant, and offered an appeal. The tribunal also found that the Deputy Manager and Deputy Manager - Care roles were suitable alternative employment and that the claimant unreasonably refused them, largely because she wanted to retain the Nurse title and continue in a more clinically focused role. The statutory redundancy payment claim was dismissed for the same reasons.