Barrett v Boxfoldia Ltd [1992] UKEAT 88_91_2011

EAT
Barrett v Boxfoldia Ltd
[1992] UKEAT 88_91_2011 · 1992-11-20
MR JUSTICE TUCKER: This is an employee's appeal against a decision of the Industrial Tribunal sitting at Birmingham on the 22nd November 1990 whereby it was adjudged that the Appellant was not entitled to a redundancy payment under the provisions of the Employment Protection (Consolidation) Act 1978.The grounds of appeal are set out in the Notice of Appeal and they are:
"1)that the Industrial Tribunal erred in law in holding that the offer of alternative employment was suitable for the Appellant and that she unreasonably refused such on the basis that, inter alia, `many people accept such a journey as a matter of course' in that they plainly applied an objective test when as a matter of law they should have applied a subjective test.
2). . . that the Appellant could have consulted her G.P. and have received effective and acceptable treatment for her travel sickness when there was no expert evidence before the Industrial Tribunal upon which to make such a finding3)that the decision of the Tribunal was against the weight of the evidence4)that the Industrial Tribunal misdirected itself in holding that the offer of alternative employment was suitable for the Appellant and that she unreasonably refused such"So far as the third ground is concerned it does not reveal any ground upon which the Employment Appeal Tribunal could review the Industrial Tribunal's decision. It is not for us to evaluate the evidence upon which that Tribunal came to their decision we can of course only disturb a finding a fact made by the Tribunal if we are persuaded that it was perverse.As to the facts of the present appeal the Respondents are manufacturers of cartons. The Appellant, was employed by them for over 17 years as a product examiner. She worked part-time, 3 1 / 2 days a week.In April 1990 when the Appellant was within a few days of her 59th birthday the Respondents moved their production from Bournbrook in Birmingham to new premises at Redditch. This was by no means so convenient for the Appellant. She had been able to walk to work at Bournbrook in 10 minutes. If she took up the Respondents' offer of re-engagement at Redditch that would involve a journey of 13 1 / 2 miles taking about 40 minutes. The Respondents did their best to simplify the move for their employees, they arranged for coach service and made ex-gratia travel allowances.As to what then took place the matter can be taken up by reference to paragraph 3 of the Reasons given by the Tribunal.Employees were informed of the move in September 1989 that it was hoped that they would all make the move and that there would be a subsidised bus service and an ex-gratia travel allowance. There were discussions with the employees' representatives. Four employees, of whom the Appellant was one, asked to be made redundant. She wrote to the Respondents on the 30th January 1990 saying that she would like to be considered for redundancy as she had suffered with travel sickness all her life and has always taken jobs near to home and for that reason she felt she could not move to Redditch.The Respondents replied saying that the coach journey would be similar to travelling by car and much better than public transport. They asked Mrs Barrett to try the arrangements out for a few weeks and then they could review the situation if she still experienced problems. They discussed the matter with the union representative and in due course Mrs Barrett agreed to begin work there on trial. That was in accordance with Section 84(4) of the Act. The Respondents were not aware that she was experiencing any difficulty and she did not tell them of any, but on the other hand, they did not ask either.On the 9th May she wrote this letter:
"With regard to my employment, I have remained with the Company during the statutory trial period but I can no longer go on with the trial period as I am finding the greatly lengthened day too much to cope with. Apart from the need to get up much earlier in the morning, the journey home in the evening has resulted in my not getting home before 5 pm.
In the circumstances, I intend to leave the Company's employment with effect from 18 May 1990.In the circumstances, as the trial period has not come to an end I intend to seek my entitlement in relation to my redundancy payment and payment in lieu of notice."She did not in that letter mention the question of travel sickness but it was known that she had felt giddy after her journeys and had had to sit down for about 20 minutes. She took some tablets on the first day only, not thereafter because they made her feel unwell and drowsy.In these circumstances the question for consideration by the Tribunal was whether under Section 82(5) the offer made by the Respondents constituted an offer of suitable employment in relation to the Appellant and whether the refusal by her of that offer was unreasonable. That is the question which the Tribunal correctly posed for themselves in paragraph 4 of their decision. They said this:
"We have to decide whether the offer of fresh employment at Redditch which the respondents made to Mrs Barrett was an offer of suitable employment in relation to her and whether she unreasonably refused the offer. There are the two main questions to consider, the increased travel time and the travel sickness."
Having accurately identified the two difficulties which the Appellant encountered, the Tribunal dealt with the question of time at paragraph 5 of their decision:
"The move to Redditch involved Mrs Barrett in an hour, or a little more, extra each day in travelling; the journey each way (some 13 1 / 2 miles) took about 40 minutes instead of 10 minutes. This was obviously not so good for her, but a journey time of 40 minutes is not out of the way in a large industrial area. Many people accept such a journey as a matter of course, the other employees affected apparently did, over 100 of them, and transport arrangements were provided which were much better than people usually have to contend with. Mrs Barrett expected to retire before long, and in our view the additional journey meanwhile did not make the offer unsuitable of justify refusal of it."
The Appellant's Counsel submits that in this paragraph the Tribunal applied the wrong test. He complains that they examined the suitability of the employment not by reference to the Appellant but by their opinion of the standards applicable to the West Midlands working population as a whole, and that the Tribunal merely considered what that working population, as a whole, would find acceptable. Counsel submits that the Tribunal did not condescend, as they should have done, to the personal view point of the Appellant. He makes that point in relation not only to the question of the suitability of the employment, but as he submits with greater force, also to the question of the reasonableness or unreasonableness of the refusal.As to the question of travel sickness, the Tribunal dealt with that in paragraph 6 of their decision in this way:
"The travel sickness was put to us by Mrs Barrett as her main objection. It was clearly a worry to her and we sympathise with her over the problem. She has been affected by it all her life and other members of her family are affected also. She has always avoided jobs that involved transport to work and she rarely goes on coach or bus journeys. In a car she has to sit at the back and she travels by train if she can when she has to travel. When she is affected she feels ill and has to sit down for 20 or 30 minutes to recover."
So far Counsel would have no criticism with the Tribunal's approach, but then he says there comes a turning point where the Tribunal turn from a subjective to an objective and he says objectionable approach. They say this:
"However we consider that Mrs Barrett could have taken steps to tackle the problem. She could have consulted a doctor, who might well have had useful advice and treatment to offer, and the pills which she bought herself she used only on the first day because of their effects. She had plenty of advance warning of the move and the travel that it would entail. In these circumstances we consider that Mrs Barrett's travel sickness problem did not make the offer unsuitable or justify refusal of it, and we find that Mrs Barrett is not entitled to a redundancy payment."
The Appellant's Counsel complains of this approach by the Tribunal. He says that here the Tribunal fell into error and in addition that they were basing their decision on something on which there was no evidence. But we would interpose that they were simply commenting on what was a matter of commonsense. That was a comment that they were, in our view, entitled to make and a matter which they were entitled to take into account. Counsel submits, that the Tribunal failed to correct the methodology which they had adopted in the previous paragraph, that is to say the reference to the West Midlands working population as a whole. He submits that in this final paragraph while the Tribunal started off by getting into the right area, as Counsel puts it, they went then awry.We agree with Counsel to this extent, that in examining questions of disability, such as travel sickness from which the Appellant suffered, it is very important that consideration should be given to the Appellant's personal circumstances. But, in our opinion, the Tribunal were clearly doing so.Counsel for the Appellant submits that whether in assessing suitability of the offer or the unreasonableness of the refusal, it is a subjective or personal test which should be applied and that in approaching the matter as they did the Tribunal fell into error and that that error amounts to an error in law in that in both respects the test they applied was objective.We are unable to agree with this submission. In our view the tests, in each case, must involve to some extent an objective element. We have been helpfully referred to Professor Grunfeld's work "The Law of Redundancy" 3rd Edition at page 183, where the learned author says this:

" Subjective and Objective Criteria

Another general aspect of the two conditions of suitability and reasonableness is to be found in the discussion about whether the criteria of suitable employment and of reasonable refusal are subjective or objective in character.Take, first, the condition of suitability. The criterion of suitability must surely be subjective in the sense indicated by the industrial tribunal in Morrison & Poole v. Cramic Engineering Ltd. that `we have to look at the personal circumstances of each applied rather than . . . look at the offer as suitable in relation to employees of this type as a class.'On the other hand, the factors of suitability relating to the employee personally have to be applied objectively in the sense that the tribunal members must use their own judgment and are not merely to accept the applicant's view of whether the new job suits him or not. This, it may be, is what the Lord President of the Court of Session had in mind when he said: `Suitability of employment is an objective matter, and includes questions of status and of sickness benefit, which if substantial enough could render the new employment unsuitable.'The criteria of the reasonableness of refusal are also subjective in character, i.e. whether refusal of an offer of new employment was reasonable decided `in particular circumstances of the particular employee.' But, again, the personal objections raised by the employee have to be weighed objectively by the industrial tribunal."We find ourselves in agreement with the views set out in that passage. We are not persuaded that the approach adopted by the Tribunal was wrong in law. In our opinion they did examine the personal circumstances of the Appellant and, as we have indicated, it is very important in these cases, as we emphasise, especially so in any question of personal disability, that they should do so. But, also, that they should be able to apply their commonsense in so doing.The questions of suitableness and unreasonableness are in this case, in our opinion, inextricably bound up. They both relate to the difficulties which travelling to and fro work presented to the Appellant. They were both questions of fact for the Tribunal to decide and provided they directed themselves properly as to the law, and provided their findings of fact were not perverse it is not for this Employment Appeal Tribunal to interfere. As we have indicated no error of law has been demonstrated and although the finding of fact is one which, perhaps, we might not have reached, it is quite another matter for us to conclude that it is a perverse finding. It is not. It is a finding which it was open to the Tribunal to make, It is not for us to substitute any view we may have of the facts for the findings of fact which the Tribunal themselves made. They are the industrial jury. The arguments that the Tribunal did not review the Appellant's own circumstances cannot, in our view, be sustained and we are not satisfied that they took into account any factor which they were not entitled to do.Accordingly, this appeal fails and must be dismissed.