Wadham Kenning Motor Group (t/a Wadham Stringer) v Avery & Ors [1993] UKEAT 405_91_2203

EAT
Wadham Kenning Motor Group (t/a Wadham Stringer) v Avery & Ors
[1993] UKEAT 405_91_2203 · 1993-03-22
HIS HONOUR JUDGE PEPPITT QC The Appellants are motor traders. The three Respondents were employed by the Appellants at the latter's garage premises in Terminus Road, Chichester, Mr Avery as paintshop supervisor, Mr Fletcher as telephone supervisor in the parts department and Mr Jones as a motor fitter. At the time when their employments came to an end in the circumstances set out in this judgment they had served the Appellants for 27 years, 9 years and 20 years respectively.On 19th June 1991 the Southampton Industrial Tribunal decided that for the purposes of their applications for a redundancy payment the three Respondents had been dismissed from their employments. The Appellants now appeal against that decision contending that it was unjustified and unsupported by the evidence.The facts found by the Tribunal were as follows. Towards the end of 1990 the Appellants' board of directors decided that their branch in Terminus Road, Chichester should be closed as soon as possible. The exact date was left to the local management who decided that if possible closure should take place by the end of February 1991.On 4th January 1991 Mr Kingsland, one of the Appellants' directors, visited the Terminus Road branch and there addressed the staff, including the Respondents. He told them that the branch was to be closed and that there would be 'casualties'. Some of the workforce, however, would be offered alternative employment at Westhampnett in Chichester and others at Waterlooville in Portsmouth. The Tribunal found that Mr Kingsland on this occasion either gave an indication that the branch was to close on 28th February 1991 or that it was common knowledge amongst the workforce that this was to be the date of closure.Later, on 4 January, all three Respondents were seen by Mr Apps, the Appellant's general manager and told that they would be offered alternative employment at Waterlooville.On 7th January a management team from Waterlooville led by Mr Wigan visited Terminus Road and discussed with the Respondents the employment which would be available to them at Waterlooville. In the case of Messrs Avery and Jones no final details were reached but an offer was made to Mr Fletcher who asked for it to be confirmed in writing.On 8th January those of the Appellants' workforce at Terminus Road who were not to be offered alternative employment received dismissal notices the length of which reflected their respective statutory notice entitlements.On Friday 18th January 1991 the Respondents received written offers of alternative employment at Waterlooville. If they accepted they were to start work there on Monday 21st January. Mr Avery, who had previously looked over the Waterlooville premises, did not wish to work there and by letter dated 24th January gave his reasons for resigning. His letter ended as follows:
"...Taking the above into account I feel that my job has been made redundant and I should be paid redundancy pay. Could you please pursue this for me?"
Mr Fletcher also refused the Appellants' offer of alternative employment giving his reasons in a letter dated 18th January 1991. In his letter he expressed the view that his job had become redundant and asked to end his employment at Terminus Road on 25th January 1991.Mr Jones decided to give Waterlooville a try and started work there on 21st January. On 11th February 1991 he told Mr Pridham, the Appellants' service manager at Waterlooville, that he did not wish to continue and in a subsequent letter said that he felt it unreasonable to be expected to work at Waterlooville and that `a redundancy situation existed'. He left on 15th February.The Appellants treated the Respondents' letters as their resignations which they accepted. The Respondents did not serve counter-notices under S.85(3) of the Employment Protection (Consolidation) Act 1978. Against this background the Appellants contended before the Industrial Tribunal that there had been no dismissal of the Respondents within the meaning of S.83 of the Act. The events of 4th January 1991 did no more than give the Respondents the earliest possible warning of the closure of the Terminus Road branch following which the Respondents had been offered alternative employment which they refused. Upon such refusal they themselves brought their employments to an end and thus forfeited any right which they might otherwise have acquired to redundancy payments.The Industrial Tribunal held unanimously that in all the circumstances the Respondents were given notice on 4th January that their employments would terminate on 28th February and that it was this notice which brought the employments to an end. In the alternative the Respondents' employment were terminated by the Appellants' letters of 18th January which would be "understood by a reasonable employee to amount to, a notice to terminate employment at Chichester effectively on 18 January, and an offer to re-engage on the 21st. ..."At the hearing before us the Appellants were represented by Mr Peter Grobel who argued his case with great restraint conscious as he was that the Respondents appeared unrepresented. But he contended with some force that there was no evidence upon which a reasonable Tribunal could properly rely to support its findings that the Respondents had been dismissed on 4th January 1991. As to the Tribunal's alternative finding that the Respondents were dismissed by the Appellants' letters of 18th January, he submitted that since it was common ground that the Respondents were entitled to refuse the offers which those letters contained and take their chance by remaining at Terminus Road, the letters could not as a matter of construction be construed as letters of dismissal.In support of his first submission, Mr Grobel referred us to MORTON SUNDOUR FABRICS LTD v. SHAW [1967] 2 ITR 84 in which Widgery J. giving the judgment of the Divisional Court on appeal from an Industrial Tribunal said of the requirements of a valid notice terminating a contract of employment:
"This is not solely a question of fact; it involves questions of law as well. It is the law, as I understand it that just as a tenancy determined by notice to quit requires a certain amount of particularity in the notice, so are there certain formalities about the type of notice necessary to determine a contract of employment. The notice may be a peremptory notice, sometimes referred to as a dismissal without notice, but if it is to operate on a future day the notice must specify the date, or at least contain facts from which the date is ascertainable."
In THE BURTON GROUP LTD v. SMITH [1977] IRLR 351 the Employment Appeal Tribunal, applying MORTON SUNDOUR FABRICS LTD v. SHAW (supra) held that notice to an employee that his employment would be terminated not later than a specified date did not constitute a notice of dismissal. Finally, in DOBLE v. FIRESTONE TYRE AND RUBBER CO LTD [1981] IRLR 300 the Employment Appeal Tribunal, explaining the MORTON SUNDOUR case, held that notice by an employer indicating the date upon which his factory was to close did not necessarily constitute a notice terminating the employments of those working at the factory particularly if, as in that case, discussions were to take place between the employer and the employee's union as to the implementation of any redundancies.With these authorities in mind we now approach the question we have to consider, viz; whether there was any evidence to support the Industrial Tribunal's finding that the Respondents had been dismissed or whether that finding should be regarded as perverse in the sense that no reasonable Tribunal could have made it.The Tribunal found as a fact that on 4th January 1991 Mr Kingsland informed the workforce at Terminus Road that the plant was to close on 28th February. That finding was, based not on direct oral or documentary evidence but on a congeries of circumstances which taken together the Tribunal considered justified it. Neither Mr Kingsland nor Mr Fletcher gave evidence but both Mr Jones and Mr Avery were told that the branch would close and Mr Jones recalled "the end of February being bandied about". Letters had been sent to the customers of the branch saying that it would close on 28th February. The workforce were told that there would be `casualties'. No indication was given by Mr Kingsland that any further notice of termination of the men's employments would be given. The three Respondents were offered alternative employment at Waterlooville later in the day of 4th January; their contracts of employment contained no mobility clause and it was common knowledge that since the Terminus Road branch was to close there would be no work for them to do there and they would automatically become redundant.Against this background the Tribunal applied its industrial experience to the case and regarded the failure of any member of the Terminus Road workforce to ask Mr Kingsland precisely when the branch was to close as an indication that Mr Kingsland had in fact specified the date. As it was put in the decision:
"... We have all dealt with these situations on many occasions and if no indication is given of a date in the formal announcement, inevitably the very first question from the floor of any meeting is "when?" The fact that nobody asked any questions indicates to us, very forcefully, that Mr Kingsland did give an indication that the branch was to close on 28 February. ..."
The Tribunal drew all these threads together in coming to its conclusion that taken as a whole the events of 4th January in the circumstances obtaining on that date would be understood by a reasonable employee at Terminus Road to constitute a termination of his employment on 28th February. There is one further piece of evidence upon which the Tribunal did not specifically rely but which they may well have had in mind which is to be found in an answer given by Mr Apps in answer to a question asked by the Chairman. Mr Apps, the Appellants' general manager, accompanied Mr Kingsland on his visit to Terminus Road on 4th January. In the Chairman's Notes of Evidence [p.28 of the bundle] he is recorded as saying:
"Kingsland said out of property finally at end of February. All said when job offered."
We consider that this piece of evidence confirms the Tribunal's finding at least of the fact that on 4th January Mr Kingsland said that the Terminus Road branch was to close on 28th February.In considering whether we should interfere with the Tribunal's finding we have been conscious of our limited role when faced with a Tribunal's findings of fact. Unless there was no evidence to support such a finding or the finding was perverse in the sense that no reasonable tribunal could have arrived at it, we must not interfere. We have come to the unanimous conclusion that this is not such a case. The Tribunal heard the evidence and using their industrial experience were entitled to take the view they did of the events of 4th January 1991 at Terminus Road. There was some evidence that those events could have been construed by a reasonable employee at Terminus Road that he was to be dismissed from his employment on 28th February and we do not consider that the Tribunal acted perversely in the sense we have described by relying on it. On this ground therefore the appeal must be dismissed.For the sake of completeness we should add that we would not have felt able to uphold the decision on the alternative ground set out in paragraph 11 of the Decision. It was common ground that the Respondents were entitled to accept or reject as they chose the alternative employment offered to them and accordingly we could not have found that those offers constituted a termination of their employments.In conclusion, we would wish to add that notwithstanding Mr Grobel's restrained presentation of the Appellants' case, we are not disappointed in finding ourselves bound to reject his submissions upon what he himself acknowledged was a technical point. It is worthy of comment that in their Notices of Appearance to the Originating Aplications the Appellants accepted that the Respondents had been dismissed and it was not until shortly before the Industrial Tribunal hearing that the point argued before us was first raised. If it had succeeded three long-serving employees of the Appellants would have been deprived of a redundancy payment to which they were morally if not legally entitled.We grant either party liberty to apply to us upon any matter arising from this judgment.