David Webster Ltd v Filmer [1998] UKEAT 167_98_0607

EAT

David Webster Ltd v Filmer

[1998] UKEAT 167_98_0607 · 1998-07-06

MR JUSTICE KIRKWOOD : This is an appeal to us by a firm called David Webster Ltd against a decision of the Industrial Tribunal sitting at Ashford, Kent, under the Chairmanship of Mrs Cooney with two Industrial Members. They held that the Respondent to the appeal, Mr Christopher Filmer, had been dismissed by reason of redundancy.

Mr Filmer is a street lighting technician. He was first employed by the Appellants in their business of fitting and maintaining street lighting, among other things, on 27 July 1987 - the employers said that he got the date wrong, it was the 23 October, but we do not need to worry about that - and his employment continued until it finally came to an end on 25 July 1997.

Mr Filmer was employed at all material times working from a depot at Chiselhurst, in Kent, and the work on which he was engaged was a long term contract in the London Borough of Bexley. As I say, he is a skilled man, a street lighting technician. The contracts for this work varied, a nearby one in Bromley came to an end and then the contract in Bexley was going to come to an end. At that time Mr Filmer was on holiday. His colleagues were given notice of dismissal by reason of redundancy but Mr Filmer in terms was not. He returned from his holiday and he had conversations with Mr Turner, the area manager, about his future.

The Industrial Tribunal found a number of facts to which we have been referred. They say:

"The Applicant was employed by the Respondent...His contract of employment stated that the company could make variations in his hours of work, job functions, department or location."

That is a reference to a mobility clause in the contract which we have seen:

"It is provided that such moves would only be made after consultation with you and, according to the circumstances, financial assistance may be given for a relocation."

That is a very vague mobility clause. It does not, apart from the need for consultation and the suggestion that financial assistance may be given, limit the area or place any other conditions on the mobility.

Mr Turner throughout evidently took the view that this was not a situation in which he was either compelled to dismiss Mr Filmer or wished to dismiss Mr Filmer. What he proposed to do was transfer him to similar work in Greenwich. Apparently Mr Turner and Mr Filmer did not always find it easy to communicate with each other; we do not need to go into painful details, but the Tribunal found, clearly preferring the evidence of Mr Filmer on these important matters, that he was not made to realise where this meant the depot would be. According to Mr Turner, it was expected that Mr Filmer would be able to work in Greenwich, which was only about three miles away from the site in Bexley; whereas Mr Filmer was given to understand, or thought he understood, that this would mean that he would have to go up to Ilford, North of the river, and work from a depot there. As he lived further down in Kent this would mean a long journey for him and he was very concerned about that.

The Tribunal naturally would have to consider, among other things, this mobility clause. I think I cannot do better than read from the decision. Having set out that the Bexley contract had been left and all work was to end on 27 July 1997, they say:

The Applicant (Mr Filmer) was not given notice of redundancy in the same terms as the other staff. We find, however, that on [30] June 1997, Mr Turner, the Area Manager, told the Applicant that his employment on the Bexley contract, working out of the Sidcup depot, would cease and that the reason for the termination of that employment was that the Respondent would be ceasing to carry on business there. That is within the definition of "redundancy" contained in section 139(1)(a)(ii) of the Employment Rights Act. That amounted to a termination of the Applicant's employment by the Respondent by reason of redundancy..."

We pause at that point. That is what this case is about. It is said on the one hand, by the employers, David Webster Ltd:

"it is quite wrong to say that there was ever notice of ending this employment. Look at the evidence of Mr Turner and his cross-examination. Look at the evidence of Mr Filmer and his cross-examination. It was not suggested by either of those witnesses that a notice was given: 'your employment will cease'." "

On the contrary", said Mr Turner, "I wanted his employment to continue. I was transferring him, I thought I was perfectly entitled to under the mobility clause, to Greenwich. Not a very long distance." Again, there was a difference between the two men about the distance which would be involved and the Tribunal again, to be fair, found very much in favour of Mr Filmer, that it was a substantially greater distance that would have to be driven than Mr Turner thought.

So what had happened? If the mobility clause covered the matter then Mr Turner was quite right and indeed the Appellants are quite right. Mr Filmer could be asked to go to Greenwich for the short and simple reason that that was within his contract, that it would involve no breach of contract. So the question of redundancy would not arise: his employment was not to end by reason of redundancy. But it appears to us, after the most careful consideration we can give to it, that that is not the view which commended itself to this Tribunal. Having mentioned this job clause they went on at considerable length to consider the situation. But before doing that they said further in paragraph 4 of their Extended Reasons:

"That amounted to a termination of the Applicant's employment by the Respondent by reason of redundancy. There was, however, an offer by Mr Turner to transfer the Applicant to the Respondent's Greenwich sub-branch with effect from 28 July. We find that that amounted to an offer to renew the Applicant's contract of employment or to re-engage him within the meaning of section 141(1) of the Employment Rights Act. The Applicant" having of course failed to accept that offer on the view which they are putting forward "resigned with effect from 25 July and we find that such resignation amounted to a dismissal having regard to the provisions of section 136(3) of the Employment Rights Act."

Having dealt with the question of redundancy and saying, quite rightly, that if he was dismissed by reason of redundancy there was a redundancy even if he could be told to work in other places (referring to High Table Ltd v Horst

[1997] IRLR 513

(CA)), the Tribunal continued:

"We have found that the Respondent acted reasonably in treating the reason for dismissal as a sufficient reason in all the circumstances, (including the size and administrative resources of the Respondent's undertaking), and having regard to equity and the substantial merits of the case. The Respondent consulted with the Applicant and offered him a new job on the contract in the London Borough of Greenwich."

Then they go on at section 141 of the Act to consider whether this was an offer of suitable employment and whether Mr Filmer had unreasonably refused it. If he did, of course, then under section 141 he would not be entitled to complain of redundancy. After considering that matter, including the fact that Mr Filmer had asked for a trial period and that had been refused, and the extra distance of the journey, theTribunal decided that although it was suitable employment they came to an adverse conclusion so far as the employers were concerned.

They say that Mr Turner had not explained where the depot would be, namely, that he would not have to travel to Ilford:

"In all the circumstances, it is our finding therefore that the Applicant was not unreasonable to refuse the alternative employment offered to him, and the Respondent is liable to pay a redundancy payment to the Applicant."

Now it seems to us that although this is not, we respectfully say, in all ways a well phrased decision, nonetheless, the inevitable conclusion of any person who understood the law on this topic and viewed this decision as one which is to be read in a sensible way - to see the sense of it rather than the details - they would say that the Tribunal are quite clearly saying the mobility clause did not cover this suggested move and therefore Mr Turner, in saying ' you are being moved to Greenwich, there is no more work for you in Bexley' was in effect saying 'your contract is at an end. If your employment is to go on, it will be a different contract in a different place. We are not entitled to require you, in fact, to go there.' Therefore that would be a breach which went to the root of contract. The employers were saying, 'if you continue with us it will be on different terms.' It was as different as if they had said it would be on different pay or on other different terms. The employers were not entitled to say that. They were requiring him to do something which the mobility clause did not entitle them to do.

When one looks at that it seems hardly surprising, with all respect. It was a mobility clause in the loosest possible terms. One would think that with such specialised work concentrated apparently in one part of England it would be necessary for anybody construing this clause to imply some limitation on it. It would not, reasonably, for example allow the employer to move him perhaps to Skye, or to Northern Ireland, or to the North Country, or something of that sort. Some limitations would have to be put into it and it seems to us, therefore, that it is not a well-drafted mobility clause and that the Tribunal were obliged to say to themselves, "does it cover this suggested move to Greenwich?" It is quite plain to us that they had in fact concluded that it did not.

In those circumstances everything falls into place, as it would much more easily if it had been better expressed. They were finding that there had been here a breach of contract. That was accepted by the employee in the circumstances that fall within section 136(1)(c) of the Act. He has terminated himself. The contract is therefore coming to an end; he is made an offer of what, on the face of it, is suitable alternative employment; he refuses that, in the view of the Tribunal not unreasonably, and he therefore brings the contract to an end in circumstances such that he is entitled to say that it is terminated by the employer's act. Nonetheless the employers, in the view of the Tribunal, acted rightly in saying that it was due to redundancy; it was. There would never have been this breach of contract or threatened breach if it had not been for the redundancy situation. They therefore held, as we think they were entitled to, that it was not a case of unfair dismissal but was a case in which there was a dismissal by reason of redundancy, albeit that it was a constructive dismissal they do not use those words. But one can only make sense of the decision, and certainly it was a careful decision, on the basis that we have endeavoured to.

We have all, after a good deal of discussion, come to the same conclusion about that. It may be said that it is a somewhat benevolent way of construing the Extended Reasons. We think, having considered it, that it is the only practical and sensible way of construing them and so we reached the conclusion which we have done. The appeal is therefore dismissed