Lewis v A Jones & Sons Plc [1994] UKEAT 776_92_0706

EAT
Lewis v A Jones & Sons Plc
[1994] UKEAT 776_92_0706 · 1994-06-07
HIS HONOUR JUDGE LEVY QC: The Respondent to this appeal is a wholly owned subsidiary of the well known shoe making firm of "Church". At all material times they operated from premises in Queen Street, Cardiff. The Appellant was a Manageress there and had been so employed by the Respondents for 10 years. Prior to 1982 she had worked for other shoe shops for 10 years and she is, obviously, a very experienced shoe saleswoman.During 1990 and 1991 the Respondents' shop in Cardiff, which was operated as a family shop of which she was Manageress, was running at a loss. The Respondents chose to close it. Their aim was to refurbish the premises, to change their sales approach and to change the nature of the goods which they sold because they hoped for greater prosperity if they had younger clientele in the 20-25 age bracket.On the 15th January 1992 the Respondents notified the Appellant of those intentions. The Appellant indicated that she would not like to work in the kind of business which was envisaged. The Respondents were prepared to consider her for a new job when they had refurbished the premises if she wanted to apply for it. But she was not interested in such an offer nor was she interested in an offer for her to be found employment with another company which the Respondents offered to do.On the 3rd March 1992 the Respondents ceased trading at the shop and on that date the Appellant and two assistants were dismissed by the Respondents, allegedly on the grounds of redundancy and they accepted their redundancy payments. At the time of the closure of the shop there was no guarantee that the Respondents' plan could be implemented. There had been no application for planning permission and no planning permission had consequently been obtained and the Respondents did not know whether it would be granted, or if it was, how long it would take for it to be granted and when it was, how long it would take for the necessary refurbishment to take place. Clearly, until planning permission was granted, there could not be refurbishment and until there had been refurbishment the shop could not re-open. The duration of the closure was thus open ended and if planning permission had been refused one does not know and, one must not speculate as to what the Respondents would have done.However, in the event, planning permission was granted on 20th April 1992. The refurbishment started on the 1st May and on the 19th May 1992 the shop was re-opened in the guise that the Respondents wished. On the 19th May 1992 the Respondents commenced their new business at the shop, instead of under the name of "A Jones & Sons", under the name of "Jones Bootmaker Fashion Shop". Although dealing with the sale of shoes as the Tribunal below found, it was of a different nature to "A Jones & Son", an entirely new venture targeting a different clientele and using a different approach.It is in that background that this appeal arises and it arises under Section 81(2) of the Employment Protection (Consolidation) Act 1978 This reads:
"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, or for employees to carry out work of particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish."
by subsection (3) of Section 81:
"in subsection (2), "cease" means cease either permanently or temporarily and from whatsoever cause, and "diminish" has a corresponding meaning."
Section 83(2) of the Act provides:
"An employee shall be treated as dismissed by his employer if, but only if, (a)the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice."
Mr Jones, who has appeared for the Appellant here, has tried very hard to persuade us that there has been no cessation of business by the Respondent in the situation which I have described. He says what happened was that a shoe shop has closed, a shoe shop has re-opened, there is the same business carried on.We think it is beyond peradventure that there was a cessation of the business for the purposes of subsection (3) and in those circumstances strictly what happened when the shop re-opened is nihil ad rem. The position was when the shop closed, as it did, there was a redundancy properly so defined. If however, we are wrong in this decision, and on this we agree with what the Tribunal said below, if the "Jones Bootmaker Fashion Shop" which came up from the ashes of "A Jones & Sons" is a shoe shop, it is a very different kind of shoe shop and we find that there was a cessation of business and there was no obligation on the Respondents to re-employ the Appellant, or indeed that there was no obligation for the Respondents to keep the Appellant on during the period, the length of which was unknown, while the shop was closed. We therefore hold, agreeing with the Tribunal below, that the Applicant was dismissed as defined by Section 83, on the 3rd March, when she accepted redundancy payment. If we are wrong on that and there was a continuing business, the requirements of that business, we suggest, was clearly for a different kind of work. We have been referred to Vaux & Associated Breweries Ltd v. Ward [1968] 3 ITR 189 (on the first appeal) and [1971] ITR 62 (on the second appeal to the Divisional Court) but we do not really find any assistance from that case on particular facts of this case. The points which were not argued in the Vaux case below, were argued here. We agree with the Chairman that the job of a barmaid in a public house cannot be properly compared with the job of a shoe salesman in two different species of shops where shoes are sold.In the circumstances, we feel the Tribunal below came to a right decision based on decision based on mixed fact and law which before them and accordingly we will dismiss this appeal.We would add that if we were wrong on all other points, we also accept the submission made by Counsel for the Respondents that they bring no allegation that the Appellant acted in bad faith, the decision which the Respondents reached was a matter of sensible business management which could have covered the ending of the employment under Section 57 of the Act.