Bass Leisure Ltd v Thomas [1993] UKEAT 47_92_2101

EAT

Bass Leisure Ltd v Thomas

[1993] UKEAT 47_92_2101 · 1993-01-21

JUDGE J HICKS QC:

Mrs Thomas was employed by the Appellants, Bass Leisure Ltd, and her employment with them terminated on 22 April 1991, following which she made a claim for redundancy payment. It is material that her claim was limited to that relief and was not for unfair dismissal, either alone or in the alternative.

The facts as found by the Industrial Tribunal are as follows for present purposes:

"2. The respondents [Bass Leisure Ltd] are part of one of the largest national groups of companies. They have extremely good administrative resources. The applicant is a Coventry lady, born and bred. Ten years ago she answered an advertisement and took up a job as a collector for the respondents. She was based at the Coventry depot, which is situated just south of the motorway. She started at 7.30 in the morning, or earlier, in the company van, to drive around a number of predetermined public houses to collect the takings from fruit machines owned by the respondents. At the end of her round, she would then report back to the depot. At the depot, her manager would then debrief her and give her the schedule of visits for the next day. For reasons of security, she had to follow the particular order of visits. Her job would (because she was efficient at it) finish almost certainly at about 2 o'clock. She would not stop for a break, she would be home very shortly after 2 because she lived only a matter of 10 minutes away from the depot. She was therefore able to carry on her other job as a housewife. Both sides recognised over 10 years that that was how her job operated.

4. In the spring of 1991, the company decided to shut down the Coventry depot. The applicant was on holiday and was away when the rest of the staff were told that the depot was shutting. When she returned from her holiday her colleagues told her what had happened. This, we believe, irritated her, since the respondents had not told her either by letter or by direct conversation. However, her manager did tell her eventually that the Coventry depot was closing and that she would be relocated to Northampton. She did not want to go to Northampton. She was very upset so she went to her manager and she said that she was entitled to a redundancy. Management replied that this was a relocation and that redundancy did not apply.

All three of us agree at this stage there seems to have been absolutely no consideration in accordance with the company's agreement of her domestic circumstances.

5. She returned upset to the collectors' room, and because of her clear distress another lady who worked for the company in a similar job capacity said that she did not mind going to Northampton. As a result of the internal arrangement between two employees, the applicant was offered relocation in Erdington, which is some 20 miles west of Coventry where the majority of the other collectors were being transferred. By the time of this offer by her employers, the applicant had taken advice from ACAS. She therefore told her employers that she was not happy with this move but told them that she would give it a try. The employers, we are all agreed, did not suggest to her that it was not just a trial period.

6. She went across to Erdington where quickly two matters became apparent to her. First of all the routes which were given to her were not dissimilar to her previous routes but because her base was in Erdington she was having to spend much more time at work. When she signed off she was no longer at Coventry, which was only a few miles from her home, but further into the West Midlands. When she finished in Erdington, she had a 20 miles drive. This was adding at least another half an hour to her day and at most, it could be several hours. We know the area reasonably well and we can understand that because of the road conditions, the time taken between Erdington and Coventry can vary from about half an hour to many hours.

7. The next thing that became apparent to her was that the new manager was now responsible for debriefing of 9 rounds. Previously, her manager at Coventry, was responsible for the debriefing of 6. Given that additional responsibility, the manager kept his salespersons waiting much longer. This resulted in the applicant not leaving work at the earliest until 3 o'clock and not getting home because of the traffic until 4 or 4.30."

Those are the findings of fact by the Industrial Tribunal. The relevant contractual provisions were as follows. There was a printed document which contained a number of provisions, of which we have only extracts. In section 3, which is headed CONTRACTUAL REQUIREMENTS and seems to have been general to the employers' staff, paragraph 3.2 reads:

"3.2 Flexibility

Your normal hours of work will have been explained to you and are contained in your Statement and/or your offer of employment. Because of the service nature of the industry in which the Company operates, there may be occasions due to staff shortages, emergencies, etc. which will necessitate you to work extra hours. Every endeavour will be made to limit the duration and length of extra hours working but the over-riding consideration must be the provision of satisfactory service to our customers.

Some variation to your normal hours of work may be necessary to suit the needs of the customer. Any local variations will be agreed with your Manager.

. ....................

The Company reserves the right to transfer any employee either temporarily or permanently to a suitable alternative place of work and to change the terms and conditions of employment in order to meet the needs of the business. Domestic circumstances will be taken into account in reaching a decision if relocation is involved."

That paragraph envisaged that normal hours of work will have been explained to the employee or will be contained in a Statement or offer of employment. No such document containing hours of work was before the Industrial Tribunal or this Appeal Tribunal, but in another section of the printed conditions, headed SPECIFIC SECTION - COLLECTORS, paragraph 8.2 deals with that matter in this way:

"8.2 Hours of Work

i)The normal hours of work will be 37.5 hours.

Weekdays: The normal hours of work are 8.30 a.m. to 4.30 p.m. to include half an hour break, however a considerable degree of flexibility if required. Actual hours will be agreed with your Area Manager.

ii)Basic salary covers normal weekday working, including one visit to the depot per day. In exceptional circumstances, this requirement may occasionally be waived with the approval of the Area Manager.

8.3"Patch System"

The system normally operated by the Company is to allocate a specific geographic territory in which you would carry out your duties.

However, it is an integral part of your job that the numbers and types of houses and/or machines may fluctuate from time to time, providing that the resultant workload can be adequately and satisfactorily completed during normal working hours. Similarly, your geographic area may be altered, providing that it remains realistically accessible from your normal residence."

The Industrial Tribunal reached a decision, by a majority, that the Applicant was entitled to a redundancy payment, and it is that decision which the employers appeal. Before us Mrs Thomas did not appear, nor was she represented, so we have had the assistance of Miss Andrew, for the Appellant, only. We are very grateful for the way in which she has led us through the not uncomplicated issues which arise and has responded to our enquiries, as we have endeavoured to see how the arguments put forward on behalf of the Appellant compare with what might have been said on behalf of the absent Respondent.

Mrs Andrew's first submission is that before any other question arises, there must have been a dismissal, which it is for the Applicant to establish, and that the Industrial Tribunal made no finding of dismissal. It is true that the Industrial Tribunal did not do so expressly. The matter arises under section 83 of the Employment Protection (Consolidation) Act 1978 , which concerns the meaning of dismissal when redundancy is in issue, and section 83(2) begins:

"(2) An employee shall be treated as dismissed by his employer if, but only if,-"

Three categories are listed: (a), (b) and (c). Head (a) concerns termination by the employer, by notice or without notice, and there is no suggestion - and never has been any suggestion - that that happened in this case.

(c) , which reads:

"(c)the employee terminates that contract with or without notice, in circumstances ........... such that he is entitled to terminate it without notice by reason of the employer's conduct."

Mrs Thomas did terminate this employment by a letter dated 22 April 1991, which reads:

"I would like to inform you after much consideration I can no longer work at Erdington Depot. I find the longer hours [continuous] travelling, the different methods of working too much to cope with. Therefore, I would like to take my redundancy. I am sorry if this causes you any problem but I can see no way out of the situation. My last ten working years have been very happy so I do this with deep regret."

The issue, therefore, was whether she was entitled to terminate the contract in that way by reason of the employers' conduct. The authorities show - we were not taken through them, but Mrs Andrew's argument proceeded on the basis, which we accept - that what is required by way of "employers' conduct" to justify such action by the employee is a fundamental or repudiatory breach. There was no doubt from the circumstances and terms of that letter that Mrs Thomas was alleging that Bass had no right to send her not "to Coventry" but from Coventry to Erdington and that she was terminating the contract on that ground.

The Tribunal dealt with that issue in some detail, in terms to which we must refer later, and found that the employers were in breach in that respect. This criticism, therefore, that there was no finding of dismissal resolves itself into two points, firstly, the absence of an express and specific linkage of the breach with the statutory issue of dismissal and secondly, the absence of any finding in terms that that breach was fundamental or repudiatory. As to the latter point, we consider that a breach which consists of requiring an employee to work where she cannot be required to work is so obviously fundamental that the absence of a specific finding to that effect is immaterial.

As to the first point, we consider that if all the factual elements of the dismissal under section 83(2)(c), which is commonly called "constructive dismissal", are present by the finding of the Tribunal, then it would be a barren exercise to remit the case in order that merely formal, supplementary, reasons be given to fill the logical gap between those findings and the consequence of constructive dismissal.

Mrs Andrew then says that the Tribunal erred in law in finding that the employers were in breach in the requirements that they made. This issue seems to have been presented to the Industrial Tribunal primarily in terms of clause 3.2. The Chairman's note of the closing address, which is very brief - indeed the address itself may have been very brief - on this point reads:

"............ Relocation not redundancy."

That would seem, on the face of it, a reference to the word "relocation" in clause 3.2. In the Tribunal's Reasons they address the requirements of clause 3.2, that is to say that there should be "a suitable alternative place of work", and that the employers should take account of the employee's domestic circumstances.

The Industrial Tribunal had apparently been referred to clause 8.3 also, and they mention that in paragraph 3 of their Reasons in which, after dealing with the terms of clause 3.2, they say:

"Further on it [that is the document] says:

Your geographic area may be altered providing that it remains realistically assessable from your normal residence" [a quotation from 8.3]

Those matters, the respondents suggest, enable them to relocate the applicant at a different base."

However, the way in which it is treated there seems not to make any distinction between the two provisions, and they are not separately addressed in paragraph 11.

Mrs Andrew submits that in fact this case fell within 8.3, and she relies on 3.2 only as an alternative. There is clearly a good deal of overlap between the two clauses, but there is force in Mrs Andrew's submissions in that the word "relocation" suggests a distance of some length, requiring potentially, at least a change of home rather than a mere re-allocation of area of working, where the question of a change of home plainly cannot arise, because it is required that the new area of territory be "realistically accessible" from the employee's normal residence.

Dealing first with clause 3.2 which certainly seems to have founded the main thrust of the submissions to the Industrial Tribunal, and which Mrs Andrew does not abandon, the Industrial Tribunal was right in law, in our view, in holding that that clause imposes two requirements. First, that the employer take account of domestic circumstances and secondly, that the alternative place of work must be suitable, suitability being a matter to be judged by the Tribunal or, as the Tribunal puts it, suitability being an objective matter. On each of those issues the Tribunal made findings in favour of Mrs Thomas.

As to the matter of taking into account "domestic circumstances" the Tribunal found, firstly, that the company took no account of Mrs Thomas's domestic circumstances and, secondly, that in fact the company knew that she was a housewife, that her domestic situation demanded her return in the early afternoon and therefore knew that she had domestic circumstances warranting consideration. In our view only the first finding was necessary and Mrs Andrew accepts in relation to that finding, and in our view rightly, that it is unassailable. The company led no evidence to aver or suggest that they had bent their mind to this requirement at any stage at all.

Mrs Andrew says that there is no evidence to support the second finding that, in fact, the company knew about the relevant domestic circumstances. The notes of evidence, indeed, disclose no express evidence of that kind. However, first, as we have indicated, that finding was not necessary to the Industrial Tribunal's conclusion that there was a lack of attention to the relevance of domestic circumstances at all. Secondly, we consider that the Tribunal was entitles to infer, when employment of this kind had continued for ten years with daily contact between the employee and her managers, and the employee and the managers were, as one sees from the notes of evidence, on Christian name terms with each other, that it is inconceivable that they would not know. We do not therefore consider that the Tribunal erred

in law in finding a breach of that requirement.

As to the second requirement, that the new place of work be suitable, the majority of the Tribunal deal with that in paragraph 11 (c) of their Reasons and found against the employers. In our view, there was evidence upon which they were entitled to do so. Mrs Andrew says that under this head the Tribunal wrongly treated the longer hours which Mrs Thomas had to work as a breach of contract, but the printed terms used the word "normal" in relation both to total hours and to time for beginning and ending work each day and provide twice, in clause 3.2 by the words "Any local variations will be agreed with your Manager."

and in 8.2 by the words "Actual hours will be agreed with your Area Manager." , how details were to be settled. The hours which the employee must, in fact, work under the contract were therefore a matter between her and the manager.

The Industrial Tribunal expressly found, after describing the employee's routine while working at Coventry, that both sides recognised over ten years that that was how her job operated. The Tribunal, in our view, therefore found the agreement between the employers and the employee to be in terms of that daily routine, and that was something which they were entitled to agree as between employee and manager under the contract.

Moreover the Tribunal's findings of the extra time involved in Erdington, based on evidence which they were entitled to accept, meant that Mrs Thomas was required to work outside even the "normal" limit of 7.5 hours per day. She was still starting at 7.30 a.m.

(c) that:

"...... she was having to work a minimum of an hour longer, and a maximum of 3 or 4 hours longer a day."

An hour would have taken her exactly to the 7 1 / 2 hours provided for by the normal hours of working and 3 or 4 hours would have taken her 2 or 3 hours over that time. That was amply supported by Mrs Thomas's evidence. In her evidence in chief, having described the situation at Erdington, she said that she was working from 7.30 a.m. until 4.30 p.m. with no break and then later, during cross-examination, she gave details of the five days which she actually worked:

"Monday 4.30 finish at Erdington [i.e. not including her journey time home], Tuesday 4.00ish. Wednesday 4.00ish, Thursday 3.30ish, Friday 4.30ish, Monday 4-4.30ish."

We do not therefore consider that the Industrial Tribunal erred in law in finding the job unsuitable for the purpose of clause 3.2.

As we have said, the Industrial Tribunal did not deal separately with the requirements of clause 8.3, probably because the case was not presented to them in that way. The requirement of clause 8.3, as I have said, is that the "geographic area", and that is described earlier in the clause as being the "geographic territory in which you would carry out your duties": your geographic area

"may be altered, providing that it remains realistically accessible from your normal residence."

In dealing with suitability, under clause 3.2, the Industrial Tribunal considered substantially the same issues as would arise under the test of "realistic accessability". We do not consider that it would be right to remit the application for separate findings on that issue when we consider that the reasonable inference is, first, that they were not asked to make such findings at the original hearing and, secondly, when it is reasonably clear from their findings on "suitability" what their conclusions on these words would inevitably be.

We next come to the issue of redundancy. As to that there is a finding of redundancy, but no express reference to the statutory provision of section 81(2), which were the relevant provisions for this purpose and which reads as follows:

"(2) For the purpose of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to- (a)the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed, or

b)the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish"

Although, however, the Tribunal did not refer to those express statutory words, there are findings of all the relevant facts.

The problem in applying section 81(2) is that, by referring to the place where the employer carried out business and the employee was employed, the section assumes that there is always one such unique place. We have described the situation which actually appertained here, and we have not been referred to any authority which helps us as to what is the test for the place in such circumstances. Mrs Andrew says that it is the Coventry area. We consider that the better view is that, in circumstances like this, it was the depot where Mrs Thomas's manager was located, from which her contract of employment was administered, to which she had to report, where she had to account daily and where she received her daily instructions. On that basis, there was clearly a cessation of business there.

The debate about whether the test of place of employment is geographical or contractual does not seem to impinge on this case, given the Tribunal's decision on the effect of the contract in relation to the employers' requirement that Mrs Thomas change her place of work, in the sense of where she reported and so on.

Finally Mrs Andrew contends that even if there was redundancy the Tribunal erred in law in finding, as the majority expressly did, that Mrs Thomas did not act unreasonably in refusing to continue with the job at Erdington. In relation to that the Tribunal say, after dealing with the issue of redundancy:

"The applicant was offered alternative employment which was in Erdington. The applicant made it clear that she was accepting the job in Erdington on the basis that she would give it a try. She gave it a try albeit over a relatively short period. The applicant decided that the job did not suit her she believed, not unreasonably, that her ability to perform her other job as a housewife had been eroded by the additional hours required by the respondent. She was not, therefore, in our view, unreasonably refusing the offer of alternative employment.

Mrs Andrew accepts that, for this purpose, the test is a subjective one in the sense that the test is, whether Mrs Thomas was acting unreasonably in the decision that she made. She also accepts that Mrs Thomas was entitled to have regard for that purpose, not only to the additional time involved in getting to and from Erdington, but also to the delay in reaching and the slowness in effecting her debriefing.

We see no ground for finding that the Tribunal erred in law in reaching their decision on this point and, having dealt with the grounds advanced by the Appellant, we have come to the conclusion that the appeal fails and must be dismissed because our only jurisdiction is to consider whether there is an error of law in the decision of the Industrial Tribunal and, for the reasons we have given, we find no such error.