Richards v Wiltshire Stationery Co Ltd [1993] UKEAT 283_91_1503

EAT

Richards v Wiltshire Stationery Co Ltd

[1993] UKEAT 283_91_1503 · 1993-03-15

MR JUSTICE WOOD (PRESIDENT): By an Originating Application dated 20th October 1990 Mr Richards complained that he had been unfairly dismissed by Wiltshire Stationery Company Limited, his employers.

Mr Richards lives in Devizes and for a substantial period of years, some 26 years, he had been employed by two companies, first of all Oritone and then by the Wiltshire Stationery Company Limited as a driver from their depot at Devizes. He lived within three hundred yards of the depot, he was able to walk to work and operating out of that depot he serviced customers stretching mostly to the south but there were some slightly to the North, Malmesbury, Swindon, Chippenham Marlborough and Newbury. He went down to the south coast to Bournemouth, Weymouth, Bridport and along that coast. He drove a one ton transit van. His loads were made up so as to fill the van and having loaded up his round, and it was arranged in rounds, he delivered. He worked from 8 in the morning until 4 in the afternoon 5 days a week, he had some 30 customers or so around that area, some had regular deliveries, some did not and it was in connection with stationery, paper, bags and that sort of thing. He delivered them there and he worked in that way over that period.

There came a time when the Company the Wiltshire Stationery Company Limited were themselves taken over by Bloomfield Supplies Limited. That was due to take place on the 16th October 1990. On Friday 12th October Mr Richards was told about this and told that there was a place for him as a driver with Bloomfields, he was clearly a valuable member of staff, he knew all the customers and he knew the routes and he knew where to go. In paragraph 4 the Tribunal say:

" . . . he was introduced to a Mr Griffiths who was managing director in Bloomfields and was informed that in the future he would be employed by them and that he would be based in Gloucester, where he would have to go to pick up stores . . "

Mr Griffiths made reference, as we have just done, to the customer relationship and expressed his view that Mr Richards was a valued member of the staff.

Paragraph 5 of the decision then continues thus:

"The applicant, perhaps not unreasonably, jumped to the conclusion that he was being asked to go to Gloucester to pick up the supplies but to go on with the same round that he had been doing for the customers all down to the South, this would have involved an additional trip of 100 miles to go up to Gloucester. This he regarded as quite unacceptable."

and then commenting on that at the beginning of paragraph 6 the Tribunal say this:

"If he had been correct in that assumption the Tribunal would have had little hesitation in saying that he was right, that this was a change in his terms and conditions, and was not a suitable offer."

That then was the position and the view of the Industrial Tribunal if those had been the facts. The meeting on the 12th was adjourned because it was thought that there was some misunderstanding and during the afternoon it having been made clear that Mr Richards objected to having to work out of Gloucester, Mr Griffiths the new Managing Director, wrote a letter it is dated the 12th October and it is before us and was before the Industrial Tribunal. It reads thus:

"Dear Mr Richards

I have purchased part of the business of Wiltshire Stationery Company which has traded as Woodward of Devizes.

Your employment will transfer to my company from the 15th October, 1990, where you will continue to be employed as a driver and your terms and conditions will remain the same.

Part of your working day will include regular visits to our Gloucester warehouse to collect stocks. As you have worked from a Devizes depot in the past we will give you the use of a vehicle which you can use to travel to and from your place of work.

We look forward to a good working relationship. You have been employed by the company for a long period, and it is the wish to both Mr Smallman and myself that this continues with no change in conditions until your retirement in 1991."

that was some eight months forward, but to return to the two relevant paragraphs of that letter they indicate that the terms and conditions will remain the same and that part of the working day will include a regular visit to the Gloucester warehouse to collect stocks, and that there was use of a vehicle to travel to and from the place of work, the vehicle presumably was the one ton truck which Mr Richards would be able to take home with him. So that the position would have been, reading that letter, that Mr Richards would have lived at Devizes with his one ton truck outside his door and then he would travel to Gloucester each day to collect stocks and then make his deliveries on his old round with his old customers. In fact, although it may not be particularly material, he could not have kept his one ton truck outside his house on the particular estate on which they were living. Quite apart from that, looking at that letter we go back to paragraph 5, we do not need to repeat that, but it is in our judgment precisely the same as the terms of that letter.

This matter came as a preliminary hearing before a panel of this appeal tribunal presided over by Mr Justice Hutchinson and the present lay Members sitting with me were the Members. This was sent to a full hearing which is now taking place. It was clearly the view of the learned Judge and the two Members sitting there that there was a problem between the two phrases of the judgment because in the latter part of the reasoning the Tribunal say this, having cited from that letter:

"There was now presented to the applicant an offer in writing of what the Tribunal finds to be suitable employment because it is stated to be the same. The only difference would be collecting from Gloucester instead of from Devizes.

The applicant rejected the offer without further enquiry. He rejected it straight away. It is at this stage that we find he was being presented with an offer of suitable employment and his rejection of it without enquiry, simply assuming it was going to be the same round as it had been before, in our view constitutes an unreasonable rejection of that offer."

pausing there, it seemed to the other panel of this Tribunal, as it seems to me sitting today, that in fact the offer was precisely that one in paragraph 5 which the Industrial Tribunal had thought it right for Mr Richards to reject, and indeed he was being asked to do the same round as he had been before precisely, that was the intention of Mr Griffiths as we see from the correspondence and indeed from the Notes of Evidence.

We looked at the Notes of Evidence and we have looked at the correspondence, it seems to us that the Tribunal, with respect to them, have found with one voice that it would have been reasonable on the certain set of facts to have treated the change in terms and conditions of constructive dismissal as being a fundamental breach, but later have taken the view that precisely that set of facts and those terms and conditions were reasonable.

Reading the matter in that way, and it has been considered twice now by this Appeal Tribunal, we can see no other way of reading it, it indicates that the reasoning of the Tribunal is contradictory in different parts of the decision and in those circumstances it must be considered flawed and therefore erroneous in law. The result of that is that this appeal must be allowed and the matter must be remitted to be heard by a different tribunal, that is the order of this Appeal Tribunal.