Kinmond v Rushton Connections Ltd [1998] UKEAT 799_97_2104

EAT
Kinmond v Rushton Connections Ltd
[1998] UKEAT 799_97_2104 · 1998-04-21

JUDGE D M LEVY QC :

This is an appeal by Mrs Janice Kinmond for redundancy pay. It arises in the following circumstances. On 9 January 1992 Mrs Kinmond signed a contract of employment with the Respondent, Rushton Connections Ltd, ("the Employer") which provided that her place of work would be at Spring Mill Earby, her employment having commenced on 19 August 1989.A time came in 1996 when the Employer wished to change offices and hence her place of employment. On 10 October 1996 ("the October letter") it wrote to all its employees as follows:
"As you are no doubt aware, Holiday Cottages Group (HCG) are pressing ahead with the re-location of English Country Cottages to Spring Mill by the end of the year.
Although technically we could stay here until mid-March 1997, we think it would be best for Rushton, HCG and both sets of staff if we were to move as quickly as possible.The nearest suitable premises that we have been able to find are at King's Mill, Queen Street, Harle Syke, Burnley and subject to planning permission being granted and the building being ready for occupation, we shall be moving our entire operation there just before Christmas.We therefore write to inform you that provisionally with effect from 15th December 1996 our Earby premises will be closed and the business will thereafter be carried on from Harle Syke.. ....However we recognise that one or two people may regard the travelling to Burnely as too inconvenient and we are therefore prepared to consider written applications for voluntary redundancy in appropriate cases by 31st October 1996. We would nevertheless hope that those who might be contemplating applying for voluntary redundancy would at least agree a trial period of four weeks working at the new premises. This trial period will not affect accrued statutory rights.We hope that we will be able to retain the full team without any redundancies at all but if anybody has any particular concerns about relocation to Burnely please do not hesitate to contact either of us"There are two signatories to the letter which (according to the Industrial Tribunal's Decision to which I will refer hereafter) were the Chairman and the Managing Director. It will be noted that that letter does not say when the Employer will be moving premises.On 6 November 1996 ("the November memo") a Julie Madeloso, on behalf of the Employers, sent a memo which reads thus:

"To All Staff

RE - CONTRACTUAL HOURS/RELOCATION

As you are aware we will be operating at the Kings Mill site from Monday 16th December.Once again everyone's contractual hours will need to be considered to ensure all calls are answered to meet the Performance Standards required by the Company and also the Clients. ...."And it gives the names of a number of people who will be given permanent hours and it ends by saying:
"Please complete the form below if there are any hours which you are unable to work."
The next day Mrs Kinmond replied to that letter in these terms:

"Dear Mike

Due to the fact I have only this week been informed that you cannot guarantee my existing or similar working hours, I therefore now have to apply for redundancy due to travelling difficulties and family commitments."On 16 December 1996 Mike Bingham, who was the Managing Director of the Company (according to that letter) wrote to Mrs Kinmond:
"Now that we finally have moved to our new offices, I hope that it is not too late for me to thank you for your efforts during your time with Rushton and to wish you well for the future.
It is a pity that you did not feel able to make the move with us but I am grateful for your contribution to the growth and stability of the company.May I take this opportunity to wish you and your family a very happy Christmas and New Year."Following that exchange of correspondence, by a document which is dated 6 January 1997, Mrs Kinmond made an application to the Industrial Tribunal for redundancy pay. Her complaint reads:
"As the Company I was employed by was relocating to an area which I was unable to travel to, I had no alternative but to apply for redundancy.
I was fortunate to have found alternative employment which commenced 3 weeks before the Company moved. However, I did not receive any redundancy pay even though I was still working some of the time up until the time they moved.I wrote to the Company mid-December and as yet have not had a reply giving a reason as to why I was not entitled to any pay."A Notice of Appearance was entered by the Company which was received on 4 February 1997. It dealt with complaints by Mrs Kinmond and two of her colleagues. As material to Mrs Kinmond, the grounds of opposition to her claim were as follows:
"(1) [The October letter] only refers to a provisional moving date of 15 December 1996. At this time it was uncertain as to when we would move, and indeed this could have been as far away as March 1997. It is clear that no definite date was known at this time, and therefore it cannot be said that notice was given.
(2) Assuming 15 December 1996 was the date of our move, we had asked for volunteers for redundancy. None of the three ladies replied by our deadline date and therefore there can be no entitlement to voluntary redundancy."(3) A number of our staff did respond by 31 October 1996 and their applications were accepted on the basis that they continued to work for the Company up until the eventual move date. This they did, at which point redundancy payments were made.(4) It is denied that any representations were made to individuals about changing their hours once they moved. It was stated generally that once we had moved, the Company would be reviewing the position when we had settled in, and that it may not be able to be as flexible on hours as before. At no time did we say that existing contractual hours would be changed.(5) In the circumstances, it is clear that in anticipation of the move taking place in late December, these three ladies of their own volition obtained alternative employment and gave notice to terminate (copy letters attached). The Company, acting in good faith, allowed them to leave early and did not insist on the full notice period, despite this causing pressure on remaining staff at a difficult time of the year.The letter of 10 October 1996 clearly states there would be no compulsory redundancies and accordingly, it is denied that the contracts of employment of Mrs Kinmond were terminated by reason of redundancy."The hearing of the three ladies complaints took place before an Industrial Tribunal sitting in Manchester on 5 March 1997. The unanimous decision of the Tribunal was to dismiss their applications.The reason that the Tribunal dismissed the applications appears to be first of all that the Tribunal (and this appears from paragraph 5 of the Extended Reasons sent to the parties on 7 April 1997) did not accept that the memo dated 6 November amounted to a Notice of Dismissal.The Tribunal then found, in paragraph 8 of their Reasons:
"The Tribunal was unanimously of the view that the applicants [and that includes Mrs Kinmond] did not resign their employment because of the relocation of the premises but in fact made it clear during their evidence that they resigned because of the content of the memo of the 6 November which related to the question of the guaranteed hours. Furthermore, the applicants only resigned when they found alternative employment. ..."
At the hearing, we understand that the other two Applicants were unrepresented but Mrs Kinmond was assisted by a representative of a firm of Solicitors and the Employer was represented by an employee.The dismissal of her claim was notified to her by the Tribunal on 7 April 1997. She appealed from it by a Notice of Appeal dated 14 May 1997. On 20 October 1997 on the preliminary hearing of the Appeal, a panel headed by Judge H.J. Byrt QC gave a short judgment. They considered that the decision of the Industrial Tribunal should be a matter of a full hearing.Mr Grendon, who appeared before us, also appeared at the preliminary hearing. The Company have chosen not to be represented today. On receipt of the Notice of Appeal, its General Manager wrote a letter dated 11 June 1997, the contents of which we have read and considered.Mr Grenfell's submissions commenced with a reference to a passage in Harvey on Industrial Relations and Employment Law , Volume 1 D, paragraph 253:
"It is now well established that in order to constitute a notice of dismissal the notice must specify a particular ascertainable date. Where the Employer merely gives an advanced warning of dismissal to occur at some future date, this does not constitute a notice of dismissal."
He submitted that the November memo gave a clear date when the Employer's place of business would change, which was absent from the October letter. He submits that this is a clear case where an Employer says, "You will no longer have work at the place at which we agreed to employ you from the date which we have quoted. We are offering you other work elsewhere". This, he says, because the place of business has changed, is a classic case of redundancy. The employee can no longer work at the place of business referred to in her contract of employment. He has referred us to The Burton Group Ltd v Smith [1977] IRLR 351, where the EAT held that:
"Moreover, in determining whether an employee has been dismissed or merely given a prior warning of intention to dismiss, what was said must be construed objectively rather than according to any unexpressed intention of the parties. ..."
He has also referred us to the decision of this Tribunal in Bass Leisure Ltd v Thomas [1994] IRLR 104. He submits that, as a matter of contract law the November memo terminated Mrs Kinmond's contract. She could not be required under her contract of employment to work 15 - 20 miles away.Having looked at the contractual documents very carefully we are satisfied that the November memo, properly considered, was indeed a termination of the contract and that was a termination which was accepted by Mrs Kinmond by her letter of 7 November. Although the November memo is headed "Re - Contractual Hours/Relocation" it clearly states, for the first time, the date on which employees will be required to work at premises some distance away.We accept Mr Grendon's submission that whilst it was open to the Employer to offer a trial period to all its employees, including Mrs Kinmond, to work at premises some miles away, there was no obligation to Mrs Kinmond, as an employee, either to accept or reject that offer. It may well be that she had, in the interim between the despatch of the October letter and the November memo, found alternative employment because she did not want to undertake the 15 - 20 mile extra journey which was involved in the new employment, particularly if she could not know that her hours of work could be guaranteed. That does not mean that she was not entitled to say "I do not wish to be employed elsewhere by you". In our judgment, analysed in legal terms, Mrs Kinmond's letter of 7 November on its true construction is accepting the repudiation of the contract of employment contained in the November memo.In the Extended Reasons the Industrial Tribunal considered that the reason for the termination of the employment was related to the question of guaranteed hours and noted that explanation was given to them by Mrs Kinmond in her evidence. However, she had made it clear in her letter of 7 November that she did not wish to go to the new place of employment because of the distance as well as the number of hours which she was not being offered.It seems to us that in these circumstances, with great respect, the Industrial Tribunal has erred when it found that the November memo did not amount to a notice of dismissal and in these circumstances the appeal must be allowed, the repudiation having been accepted by Mrs Kinmond.If a representative of the Employer had attended today, a submission may have been made, based on paragraph 3 of their letter of 11 June 1997, that the Company sent the November memo to all staff with the sole intention of identifying hours that they could not work, should contractual hours be reviewed following the relocation of 16 December 1996. That might have been the intention of the Employer in despatching the memo, but the legal effect of the memo was to fix a date on when Mrs Kinmond's employment would end because of the Employer's move. This is a repudiation of her contract which, in our judgment, Mrs Kinmond was entitled to accept and thus to make a claim for a redundancy payment.In these circumstances we will allow this appeal and subject to any submission Mr Grendon suggests, we will remit this matter to the Industrial Tribunal for the Industrial Tribunal to quantify the amount of redundancy, to which Mrs Kinmond is entitled if it cannot be agreed between the parties.