Williams v Northwest Regional Railways Ltd [1997] UKEAT 195_97_0705

EAT
Williams v Northwest Regional Railways Ltd
[1997] UKEAT 195_97_0705 · 1997-05-07

JUDGE PETER CLARK :

This is an appeal by Miss Joanne Williams, the applicant before an Industrial Tribunal sitting at Liverpool on 5th November 1996, against a decision of that tribunal dismissing her complaints of breach of contract, unfair dismissal and entitlement to a redundancy payment. Extended reasons for that decision are dated 9th December 1996.She has been unable to attend this preliminary hearing, held to determine whether the appeal raises any arguable point or points of law to go to a full appeal hearing. However, by letter dated 21st April 1997 she has submitted written representations which we have taken into account.The facts are set out in extenso in paragraph 5 of the tribunal's reasons. It is sufficient for the purpose of this appeal to recite that in early 1996 the appellant was employed by the respondent as a pay bills clerk in Liverpool. On 21st February she was informed that her work was being transferred to Manchester in April 1996.On 28th March she was told that she had been allocated the post of Payroll Clerical Assistant in Manchester effective on 1st April, and that in view of her domestic circumstances (she is a single parent) arrangements would be made for her to travel to and from Manchester during her contractual working hours.She refused to take the job and on 19th April wrote to the respondent saying that she considered herself dismissed by reason of redundancy. The respondent replied on 25th April, contending that the Manchester job was suitable alternative employment. The parties rehearsed their respective positions in subsequent correspondence.Her case before the tribunal was that the offer of alternative employment was unsuitable due to the length of travelling time, notwithstanding that it was within the working day; the distance from home (in case there was an emergency) and difficulty in completing her tasks within the working day which would put her under pressure. She also contended that she would suffer a reduction in earnings.She relied then, as she does before us, on a definition of suitable alternative employment contained in Clause 7 of the relevant collective agreement, incorporated into her contract of employment.The tribunal considered the rival contentions and concluded that the respondent was not in breach of the contractual definition of suitable alternative employment; that it was suitable and that she had unreasonably refused that offer; that in the circumstances she had not been dismissed; but that if she was dismissed the dismissal was fair and she was not entitled to a redundancy payment.The appeal focuses on the contractual definition of suitable alternative work, and in particular Clause 7 which provides:
"7. For the purpose of determining what constitutes an offer of suitable alternative work: (a) the post must be one which would not involve an increase in the employee's present daily travelling time by an average than half an hour in each direction by train or public road transport if the train service is not suitable provided that the total daily travelling time between the employee's home and his new place of work does not average more than an hour and a quarter in each direction.
. ..NOTE:

Travelling time for this purpose will include -

Waiting time en route arising from making train or bus connections.Waiting time for first train or bus service following completion of turn of duty."In her written submissions the appellant takes issue with the calculation made by the respondent of her additional daily travelling time involved in working in Manchester. That calculation is set out in a document contained in the respondent's bundle below R23. The difficulty with that submission is that in paragraph 5(o) of the reasons the tribunal have accepted the respondent's evidence on this point. It is not open to us to re-open this factual issue.In any event, on a proper construction of Clause 7, in our judgment, travelling time means time spent travelling outside her contracted working hours. Since her additional travelling time was to be within working hours, no breach of contract is established.In these circumstances we are unable to discern any arguable point of law to allow this case to proceed to a full hearing, although for ourselves we prefer to affirm the tribunal's decision on the alternative ground that she was dismissed but that the dismissal was not unfair; she was not entitled to a redundancy payment, having unreasonably refused an offer of suitable alternative employment; and finally, that the respondents were not in breach of contract.Accordingly, this appeal is dismissed.