Ketchen v Halliburton Logging Services UK Ltd [1994] UKEAT 525_92_1105

EAT
Ketchen v Halliburton Logging Services UK Ltd
[1994] UKEAT 525_92_1105 · 1994-05-11

JUDGE PEPPITT QC :

This is an appeal from a decision of the Norwich Industrial Tribunal sent to the parties on 9 June 1992. The unanimous decision of the Tribunal was that the Applicant had been unfairly dismissed but that no monetary award should be made. The Tribunal found that the Applicant was redundant but that there had been inadequate and over-hurried consultation at the time of and before his dismissal. Accordingly the dismissal was found to have been procedurally defective.The Applicant, Mr Ketchen, now appeals from this decision on the ground that the primary finding of fact upon which it was based was perverse. That submission requires some reference to the history of the matter.The Respondent Company was one of a group supplying support services to the oil and gas exploration industry. It was the United Kingdom arm of the group with bases at Aberdeen and Great Yarmouth. The Appellant was employed as a senior mechanical and technical maintenance operative at the Respondents' Great Yarmouth base. On 2 October 1991, the United States Parent of the Respondents decided on profitability grounds that the United Kingdom company was expendable. The general manager, Mr Dowds, was so informed. Mr Dowds was also told that funding would cease. The entire workforce was to be made redundant.Two days later on 4 October 1991 notice of the general redundancies, which were to take effect from 11 October 1991, were posted at the Great Yarmouth premises and the Respondents' employees received a letter on the same day to the same effect. Both the letter and the notice invited the employees to discuss their positions with any one of three named senior managers. One of them was Mr Butler. The Appellant selected Mr Butler as the manager to consult. The Appellant was in a special position for this reason. He and a man named Morris had been assigned to Nigeria for a short term temporary contract of up to 3 months. Their wages were to be paid by the Respondents and reclaimed at the conclusion of the secondment. The Appellant's visa had been obtained, his tickets were available, he had had the necessary injections and was due, he said, to go to Nigeria on Monday 7 October.His discussion with Mr Butler, which the Tribunal found took place at about 6.30 pm on Friday 4 October, took place against this background. The Tribunal's findings as to what occurred in the course of that discussion went to the heart of its decision. According to the Appellant Mr Butler told him that the proposed Nigerian secondment was no longer available to him and that the Respondents in any event would not be able to pay his wages if he went there. The result, said the Appellant, was that he did not go to Nigeria and his employment ceased at the end of the following week on 11 October.The Appellant's evidence to that effect appears from the Chairman's Notes. We quote shortly from pages 58, 59 and 61:P.58"I was due to go 7 October.3 weeks prior there had been doubt about the date.

I'd had prophylactic medicines

I was all ready to go.P.59When I spoke with him [Mr Butler] he said I was no longer required. He said there was no longer reason to go.I asked why the visas had been held up.He told me he'd wanted to hold me and Morris back to tell us of our redundancies.The visa had been issued and received by me by Saturday 28 September.P.61Butler dismissed me.He told me no longer need to go to Nigeria and I need not come in.I didn't ask why there was no need to go.

I just accepted this."

Mr Butler was overseas at the time of the Tribunal hearing and was not called by the Respondents. The only witness whom the Respondents did call was a Mr Hutchen, the company secretary, who had no evidence to give of the meeting between the Appellant and Mr Butler on the evening of 4 October.Notwithstanding this the Tribunal elected not to accept the evidence which the Appellant gave but found that the reason why he did not go to Nigeria was that he himself decided not to do so. The route by which this conclusion was reached is set out in paragraphs 3.6 to 3.8 of the decision which we should perhaps read in the light of the allegation that the Tribunal's decision was perverse:
"3.6 The applicant was in a state of shock as a result of what was said in the general meeting. He saw Mr Butler and there is a conflict of evidence as to what happened at that discussion. The applicant's version is that Mr Butler told him there was no point in his going to Nigeria and indeed that the trip was ruled out. The respondent's position is rather different. Regretfully we have no heard from Mr Butler because he is abroad and we quite understand the respondent's difficulty operating world wide and having to produce expensive employees at Industrial Tribunals in Norfolk. Nevertheless we do have a memorandum from a Mr Pass, dated 16 March 1992, and referring to the events of the previous October Mr Pass says the following:-
"On the Monday [Monday 7th] I called GYN (that is the Gt Yarmouth base) and spoke to Paul Morris (that is the colleague who was going to go to Nigeria). I told him of the arrangements and he informed me that Ketchen was not in the base and definitely would not be going to Nigeria. He said that Ketchen had told him he was disillusioned with the company and was already seeking alternative employment."
3.7 The applicant in his evidence denied that he had spoken with Mr Morris on Monday 7 October and says that his last conversation with Mr Morris was on the Friday at about half past six, after the applicant had spoken with Mr Butler. The applicant has not in his evidence, or in his submissions which have been made as we understand it following the receipt of the documents - certainly not before this tribunal has it been challenged - that the note by Mr Pass is other than accurate. The tribunal accept what is said in the note and on reconstructing the timetable, based on the undisputed evidence we have heard, if Mr Morris said that to Mr Pass on Monday, Mr Morris must have acquired the information from the applicant on the Friday at about half past 6. And if the information was as it is recorded - that he was disillusioned with the company and was already seeking alternative employment - then it seems to us that that must reflect on the applicant's state of mind at the time of dismissal. In other words, by the time of his dismissal, the applicant was already looking round for other employment because he was disillusioned with the respondent.3.8 Based on that interpretation of the facts, as explained by the documents and undisputed in argument before us, it seems to us that we must look very carefully at the discussion the applicant had with Mr Butler and in doing that we reject the interpretation which the applicant would have us place on that conversation and we find that the applicant had already become disillusioned by the respondent and in no way was he prepared, by 4 October, to go to Nigeria and he rejected the suggestion that he should do so."Miss Wakefield submitted that as a matter of construction the final sentences of paragraphs 3.7 and 3.8 must mean that the Appellant had become disenchanted with his employers before notice was given on 4 October, that he and his colleagues were to be made redundant. She says that there was no evidence that that was so and that accordingly that finding at least was perverse.We have given this matter some thought and we have come to the conclusion that although those two sentences could have been more felicitously expressed, where dismissal is referred to in paragraph 3.7, the Tribunal was referring to the date when the dismissal would take effect, that is Friday 11th and not the date when notice of it was given, Friday 4th. The former suggestion would really have no evidential basis and was plainly not a conclusion which flows easily from the findings which immediately preceded it. We think that the Tribunal was saying that having seen notice of his dismissal and having discussed the matter with Mr Butler, then and not before the Appellant became disillusioned with his employers. But, says Miss Wakefield, the suggestion in paragraph 3.6 of the decision that there was a conflict between the evidence which the Appellant gave and the matters set out in Mr Pass' memorandum of 16 March 1992, was without foundation. On the contrary, she argued, the fact that Mr Ketchen was not in the base on Monday 7th and told Mr Morris after his meeting with Mr Butler on Friday 4th that he was disillusioned with the company and was already seeking alternative employment, in no sense undermined the evidence which the Appellant gave of his meeting with Mr Butler. On the contrary, in a sense it reinforced it because if that conversation took the course which the Appellant describes, that would itself have provided a basis for his disillusionment. Furthermore, said Miss Wakefield, the Tribunal cited and relied upon only a part of the relevant memorandum which is in our bundle at page 69. Immediately following the part to which the Tribunal referred there appeared this paragraph:
"I thought at the time that this was fair enough but then I was told that Butler had spoken to the two of them over the weekend. I cannot remember who told me this but I think it was Manthorp. George [that is Mr Butler] had reputedly told them that as the UK company no longer existed, they would be off the payroll and would not be paid whilst in Nigeria. Fortunately, Morris did not believe this and went to Nigeria. Ketchen did not go and I think he ceased working for us at that point."
This paragraph, Miss Wakefield submitted, not only was consistent with the evidence which the Appellant gave of his meeting with Mr Butler, but provided positive support for it. Accordingly, said Miss Wakefield, the finding reached by the Tribunal of the meeting on 4 October was perverse either in the sense described by Lord Donaldson in Piggot Bros Ltd v Jackson [1992] ICR 85 in that it was a finding of fact which was unsupported by any evidence, or alternatively, it was perverse on the basis found by this Tribunal in East Berkshire Health Authority v Matadeen [1992] ICR 723 in that the decision on which it was based flew in the face of properly informed logic.The result, submitted Miss Wakefield, was this: there was no doubt that the Nigerian job was available, not least because Mr Morris took it and another of the Respondents' employees was invited to take the Appellant's place but resigned. It follows, she said, that if the job was not refused by the Appellant, but was withdrawn from him by the Respondents, there was no true redundancy situation.Miss Wakefield, in support of that submission, relies upon subsection 2(a) of section 81 of the Employment Protection (Consolidation) Act 1978. That subsection reads as follows:
"For the purposes 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.
Miss Wakefield argued that as a matter of construction in the circumstances of this case, the place where the Appellant was so employed must embrace not only the United Kingdom, or Great Yarmouth, but also Nigeria because that is where the Appellant was contracted to go, albeit for short term secondment at the time of his dismissal. And, she says, because there was work at least for 3 months available for the Appellant in Nigeria at that time, the Respondents cannot argue that they had ceased to carry on their business in that place, being the place where the employee was employed.If there was no true redundancy, no reason would have been established by the Respondents for the dismissal and compensation would flow automatically, but, alternatively, says Miss Wakefield, if that submission is not acceptable, the dismissal was held to have been unfair on procedural grounds primarily on grounds of the lack of meaningful consultation. Adequate consultation, she submits, would have given Mr Butler the time and the opportunity to satisfy himself about the undoubted availability of work for the Appellant in Nigeria and accordingly the Appellant would, on that basis, have been entitled to compensation at least for the 3 months during which that secondment was to last.That is how the Appellant puts it.Mr Cavanagh, on behalf of the Respondents, attacks first of all the contention that the Tribunal's decision was perverse. He submitted that there was an evidential basis for the decision which the Tribunal had reached and whilst accepting that other Tribunals might have come to a different conclusion, argued rightly that that was no concern of ours if there were grounds for the decision which this Tribunal reached. He relied on 5 matters which he said provided the evidential basis which justified the Tribunal finding. At the forefront he put the demonstrably unfavourable impression which the Appellant had created as a witness in the minds of the Tribunal. It was an impression which the Tribunal set out in terms in paragraph 3.8 of the decision. The words which they used were:"we reject the interpretation which the applicant would have us place on that conversation".That is a polite way of saying "we reject the Appellant's evidence of that conversation". That finding, says Mr Cavanagh, would be enough for his purposes and he puts it this way.There were only 2 possible reasons why the Appellant did not go to Nigeria on the assumption, which he accepts, that the work was there available for him. Either he refused to go or the Respondents refused to let him go. By rejecting the Appellant's version of what was said, the Tribunal was entitled to find that the only other available alternative reflected the reality.Mr Cavanagh's second point really operates as a bolster of his first. He draws our attention to the fact that in the early stages of this matter no complaint was made by the Appellant relating to a refusal to let him take the Nigerian secondment, nor indeed was there any reference to Nigeria at all. The IT1 was dated 13 December 1991. It has been preceded by a letter from his solicitors dated 26 November 1991 (page 101 in the bundle) and followed by a request from those solicitors for Further and Better Particulars (page 105 in the bundle). It was only in the Respondents' solicitors' letter received on 26 March 1992 (page 109 in the bundle) that the Nigerian secondment was first mentioned and it was picked up by the Appellant's solicitors in their letter dated 14 April 1992 (document 117) and pursued thereafter.Mr Cavanagh expressed surprise, as did the Tribunal, that if Nigeria had been, as the Appellant said in his evidence, central to his case, it had played no part in the progress of his complaint until the middle of April 1992 and then only after the matter had been raised by the Respondents' solicitors.The third matter upon which Mr Cavanagh relies is the memorandum to which the Tribunal clearly attached weight (page 69 in the bundle). Mr Cavanagh referred us to that memorandum in full and perhaps it is of significance that we should cite its first paragraph. Signed by Nick Pass it begins:
"Regarding Lyndon Ketchen, I recall immediately after Peter Dowds announced UK would be closing and Butler made his announcement, Peter left for the USA. Before he went he gave me a list of things to be done. One of these was to follow up on Nigerian visas for Paul Morris and Lyndon Ketchen. I was told they were going to Nigeria for between 6 weeks and three months as HLS Nigeria was short handed.
We received Morris's visa on the Friday and were told that Ketchen's visa would be ready on the Monday. As it was their first trip to Nigeria, I thought it best that they should travel together and so we made bookings for the two of them on the Tuesday.Let me say at this point that it was my understanding that this was a temporary assignment with the possibility of it becoming permanent after they had seen if they liked Nigeria and, more to the point, if Nigeria liked them."There then followed the paragraph upon which the Tribunal relied:
"On the Monday I called GYM and spoke to Paul [Mr Morris]. I told him of the arrangements and he informed me that Ketchen was not in the base and definitely would not be going to Nigeria. He said that Ketchen had told him he was disillusioned with the company and was already seeking alternative employment."
It seems to us that there is at least an inference adverse to the Appellant's evidence of his meeting with Mr Butler which can be derived from that agreed extract from Mr Pass' memorandum. He, Mr Pass, was checking up on the arrangements made for the two men to go to Nigeria. He rang on Monday 7th October obviously believing that they were still going. He was told by Mr Morris that the Appellant would not be going and the only reason offered by Mr Morris was that the Appellant was disillusioned with the Company and was already seeking alternative employment.We find it somewhat surprising, as no doubt the Tribunal did, that this could have been said if the truth was that the Appellant, but not Mr Morris, had been told by Mr Butler that he was not to go to Nigeria. We have in mind that Mr Morris spoke to the Appellant immediately after the Appellant's conversation with Mr Butler at 6.30 pm on Friday 4th October.Mr Cavanagh's fourth point was a note from Mr Butler to Mr Hotchen, dated 22 April 1992. It was a response by Mr Butler to a request for information sought by the Appellant's solicitors in connection with the proceedings. The relevant part of that message reads as follows:
"In reviewing the fax you sent me on 16 April 1992, Subject: Lyndon Ketchen, I can comment on the following items. Mr Ketchen was offered a temporary assignment at the same time as Mr Morris. Mr Morris accepted and Mr Ketchen declined the offer. The assignment later became permanent for Mr Morris."
Miss Wakefield makes a number of justifiable points about the reservations which we should entertain in relation to that document. First of all we do not know what question it was purporting to answer, nor do we know when and in what circumstances Mr Ketchen is said to have declined the offer, nor did the Tribunal have any opportunity to test what Mr Butler said by cross-examination.Finally, she said, it would be surprising if the Tribunal did attach weight to it having regard to the fact that there was no reference to it in the decision.In our judgment all of Miss Wakefield's points have substance but we are left with at least some evidence which the Tribunal was entitled to consider to the effect which Mr Butler indicated. There was no suggestion by the Appellant, or indeed by anyone else in the hearing, that the Appellant might have rejected the Nigerian secondment on any other occasion than on 4 October and although the Tribunal did not refer to the document in its decision, that decision was a reserved decision and we do not think we are entitled to assume that the Tribunal did not pay regard to it merely because they did not make express reference to it.Finally Mr Cavanagh points to two pieces of evidence given orally to the Tribunal on which he submits the decision could have been founded. The first at page 57 of the bundle by Mr Hutchen:
"As to Nigeria. Applicant could still have gone. He was due to travel 10 October."
and on page 61 the Appellant himself, it is fair to say, between a series of answers consistent with his case, is recorded as having given the reason why he did not go to Nigeria as:
"The real reason I failed to go to Nigeria because of no consultation or to consider alternative employment."
On those 5 grounds Mr Cavanagh submits that the decision of the Tribunal can be supported.After some anxious consideration we have come to the conclusion that he is right. We are not in a position to evaluate the impression which the Appellant created in the minds of the Tribunal. We have no power to interfere unless there was no evidence to support the material finding, or the decision which the Tribunal reached was illogical in the Materdeen sense. It may well be that other Tribunals would have reached different conclusions but we are not prepared in the circumstances of this case to find that this decision was unsupportable.Accordingly we reject Miss Wakefield's primary submission. That would strictly be enough to decide this appeal but in deference to the arguments suggested to us we shall consider shortly Miss Wakefield's second submission, that for the purposes of section 81 subsection 2(a) of the Act in the circumstances of this case the Appellant's place of business should be so defined as to include Nigeria. As to that we are persuaded that a finding as to an employee's place of business is a finding of fact and we are satisfied that by a combination of paragraphs 5 and 6 of the decision, that is that the Appellant was employed in Great Yarmouth by the Respondents whose operation in the United Kingdom was to cease, that the Tribunal found that the Appellant's place of business was either in the United Kingdom or Great Yarmouth. But quite apart from that, as a matter of construction of the subsection, we do not consider that for the purposes of subsection 2 of section 81 of the Act an employee's place of business can be changed by short-term temporary secondment elsewhere. In our judgment, notwithstanding that proposed secondment, the Appellant's place of business remained in Great Yarmouth or in the United Kingdom.Accordingly, it seems to us that this appeal must fail.