Oil Ltd v Aldred [1993] UKEAT 755_92_1207

EAT
Oil Ltd v Aldred
[1993] UKEAT 755_92_1207 · 1993-07-12

JUDGE HULL QC :

The Respondent to this appeal (and the applicant below) is Mr Aldred who was a chief engineer employed by the Appellants on vessels. Page 16 of our bundle gives a list of the vessels and his appointments.He was dismissed on 6 March 1992 and applied to the Industrial Tribunal at Southampton for a declaration that he was entitled to a redundancy payment or that he had been unfairly dismissed. The preliminary issue arose whether he was, on the relevant date, in Great Britain in accordance with instructions given to him by his employer, and so entitled to a redundancy payment under section 141(4) of the Employment Protection (Consolidation) Act 1978.He did various tours of duty. It is all set out in the Decision of the Tribunal. He was chief engineer on various supply vessels and his bases of operation as they were called were at various times Mexico, Angola, Singapore, Nigeria, Congo, Gabon, Vietnam and Malaysia. At the end of each of these tours he used to take leave, quite commonly in the United Kingdom although he might go to other countries and enjoy his holidays there. He could go wherever he wanted on leave but it was an understanding, apparently, that he would remain in contact with his employers and it was customary for him to do so by telephone. Sometimes they had employment for him at the end of his leave (or before, apparently, on one occasion) but occasionally they could not find work for him immediately. He would remain an employee of the company, and was paid, but he might have to wait a few weeks for work to be found.On the last occasion, in December 1991, Mr Aldred having finished his tour of duty, which was based in Singapore, came home to the United Kingdom. He was given a concession about returning early for Christmas and did so. He flew straight home to the United Kingdom and before Christmas he contacted a Mr Henke who was the employers' representative. Mr Henke said that he had no idea where the next assignment would be and asked Mr Aldred to contact him later. In Mid January he contacted Mr Henke by telephone and again Mr Henke could not say where the next assignment would be. Various places were mentioned. Mr Henke said "you should stand by" - meaning no doubt "be ready to resume your employment and wait in the meantime for events to occur". There was a third telephone conversation shortly after the second in which Mr Aldred, rather repenting of something he had said about his preferences, told Mr Henke's assistant that he would be content to accept employment anywhere and did not wish to refuse employment simply on the basis that it was in Africa.His leave expired on 5 February. He did not again get in contact with his employers but he remained in Great Britain. He had heard nothing by 5 February and he took the view that there was no need for him to do anything and he made no contact. He was of course on pay and he was now on duty and could be told to go anywhere, according to the Tribunal's Decision. Whilst he was on leave, Mr Aldred told the Tribunal, "as long as I was in touch with the company, no-one cared where I went". There is no dispute about that. On the question of stand by he said "mostly in UK as best springboard for most places" but he was pressed by Mr Ricketts who appeared below and appears here today in front of us. He agreed that what that meant was remaining in contact.The Tribunal say in paragraph 5 of their Decision:"...the applicant concedes that he should keep in contact, not that he should be in any specific place. Mr Ricketts reminds us that though the applicant said it was normal to standby in the UK, it is in fact possible to standby anywhere as long as the respondent knew where the applicant was. Further the UK was not the sole jumping off point for the respondent's places of business".That was the company's submission and the Tribunal dealt with it as follows in paragraphs 7, 8 and 9 of their Decision which are the essential paragraphs:
"We first tackle the question of whether the applicant's return from Thailand and Singapore was in accordance with instructions of his employer. We are quite satisfied that it was not. The applicant could have chosen to spend that leave anywhere in the world. It was his choice, and at his very specific request, in very special circumstances, that he returned to Portsmouth. We can by no stretch of the imagination say that the applicant would then be in Great Britain in accordance with instructions of his employer.
The next question we had to answer was what was the position on the day that the applicant would normally return from leave, 5 February. He had some 2-3 weeks earlier been told to be on standby. On this point we are unable to be unanimous. Both my colleagues [they are the two Industrial Members] take the view that when the instruction to be on standby was given the applicant was in England, that his employer expected him to remain in England, and it knew it could contact him in England. There was no need to give a specific instruction; or the instruction to be on standby carried with it that implication. Accordingly the applicant was within Great Britain in accordance with the instructions given to him by his employer.I regrettably (particularly as this is a question of fact) cannot agree with my colleagues. The evidence of the applicant is clear, he could have been anywhere during that time, even after 5 February, as long as his employer knew where he could be contacted. There was no necessity for him to confine himself to Great Britain. I appreciate that to say he could go anywhere may be an exaggeration. Perhaps it is more correct to say anywhere within reasonable reach of home so that he could, if required, organise himself to depart at fairly short notice. Nobody I feel could put any argument against him being in either northern or southern Ireland, the Isle of Man or the Channel Isles, or (especially on the applicant's own evidence) Paris. In my view [and this is the minority view] the reasonable implication of the instruction to standby was to be in reasonable proximity as long as the employer knew where he was and the employee could be prepared to depart quickly. I cannot imply into that an instruction that he should be in Great Britain and in Great Britain only."Section 141 of the Employment Protection (Consolidation) Act 1978 provides that important sections of the Act do not apply to an employee whose work is wholly or mainly outside Great Britain. That is of course the position of Mr Aldred. Subsection (4) creates an important exception:
"An employee who under his contract of employment ordinarily works outside Great Britain shall not be entitled to a redundancy payment unless on the relevant date he is in Great Britain in accordance with instructions given to him by his employer."
The relevant date here is 6 March when Mr Aldred was dismissed. Unhappily in spite of waiting his employers had been unable to find employment for him and no doubt because of changes in economic circumstances (he was a long standing employee) they thought it right to dismiss him then.In this period after his leave had expired he was in fact in the United Kingdom living at his home near Portsmouth; and the question was whether it could be said of him that he was in Great Britain in accordance with instructions given to him by his employer. We accept the view put forward by the Chairman, who was in the minority of the Industrial Tribunal, that this was a question of fact. There was evidently no express term in the contract of employment. The members of the Tribunal had to look at all the evidence including most important the express terms of the contract, the history of the employment and the surrounding circumstances and of course they had to make use of their commonsense. Here, Mr Aldred was being paid.Perhaps one indication was that he was not in daily contact with his employer. He did not ring up all the time to say `here I am. Is there anything for me today' or anything of that sort. He simply stayed at his home. He might be sent anywhere in the world and it is pointed out to us by Mr Eggleton, with some justice, that the evidence that he gave about being able to go anywhere in the world on leave truly related to his leave period; not the period whilst he was on duty, so to speak, but there was no work for him.On these questions of fact (which include questions of inference) of course there is often room for different views. It may easily happen that on a question of fact one man may take one view and another, another as has happened in this case. The Chairman, who is experienced and full of commonsense, took one view and the Industrial Members, equally no doubt experienced and commonsensical, took a different view. One can certainly see, if one were concerned to justify the members' view, that there were indications here that the majority view was or might have been the correct one. It was a remarkable thing if indeed Mr Aldred were free to travel outside the United Kingdom that he was not in daily contact; because at any moment a need for his services might arise.I pointed out myself in argument that the words "stand by" do imply standing in a particular place to await events and there are no doubt a number of other considerations. We have to remind ourselves that this Tribunal heard the evidence viva voce and we have to go on the note of evidence of the Chairman which is in the nature of things not a transcript and it cannot convey everything that was said.For his part Mr Ricketts points out to us that the words of the statute are plain. The presence of the employee if he is to qualify under Section 141(4), must be in accordance with instructions given to him by his employer. Where is the instruction? says Mr Ricketts. The instruction was only to stand by not to stand by in any particular place and, says Mr Ricketts, it was enough for him to phone wherever he might be. These considerations with all respect are matters of commonsense. They involve it seems to us matters of degree. We think that they were entirely within the competence of the members of the Tribunal. It was a pure question of fact for them whether on the true view, in the events which had happened, it was implicit in what Mr Aldred had been told to do that he should remain in Great Britain. We think that the members were entitled to form that view. In particular we feel obliged to reject what Mr Ricketts told us, that an instruction must be an express instruction. We think it is very frequently clear in everyday life to the employee that he is under duty to do something, to be somewhere, or to remain somewhere, without that being spelled out in terms. We think this is, on the majority view, such a case. It is not up to us to say whether we agree with the majority or whether we agree with the Chairman. What we have to do is to say whether we think the view of the majority is a possible one on the evidence or whether, on the other hand, we think there is no evidence to support it. We cannot say that there is no evidence to support it. We are all of the opinion that this was a view which it was open to the majority to reach and therefore the conclusion of the Industrial Tribunal must stand and the appeal must be dismissed.