LUCAS VARITY PLC v MR M RADFORD [2000] UKEAT 1397_98_0707

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 1397_98_0707

Case No Appeal No. EAT/1397/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

LUCAS VARITY PLCAPPELLANT

MR M RADFORDRESPONDENT

Before

His Honour Judge Wilcox Mr D A C Lambert Mrs J M Matthias

Date 7 July 2000

[1]APPEARANCES For the Appellant MR T LINDEN (of Counsel) Instructed by: Mr R Linskell Legal Advisor Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ For the Respondent THE RESPONDENT IS IN PERSON. JUDGE WILCOX: The Appellant appeals from a decision of the Employment Tribunal sitting at Reading on 16 September 1998, that the Respondent was entitled to a statutory redundancy payment and to a contractual redundancy payment. It is not necessary to set out in any detail the facts of this case. Suffice it to say that for some years the Respondent to this appeal, Mr Radford, had been employed by Lucas Varity the Appellants, at their plant in Witney. They chose to close that plant, eventually it was closed in or about the end of February 1998 and discussions as to possible redundancy were under way between the Appellant and the employees in autumn of 1997.

[2]This appeal focuses on two matters: 1. The entitlement of the Respondent to a contractual compensation and his entitlement to a statutory compensation. There are free-standing matters, although of course having regard to the facts that relate to each, they are inexplicably, bound up with each other. It does not follow that if one finds that a statutory redundancy payment is the entitlement, that necessarily it follows that there is a contractual one. Neither, I suppose, technically in law vice versa. 2. The normal practicalities and facts situation make them interdependent. Certainly that was the approach taken by the Tribunal in this case. At paragraph 12 (b) "On either analysis a contractual right to receive a payment in accordance with the Respondents formula, is made out provided that (as we have found he does) the Applicant qualifies for a statutory payment." The Statutory Payment Entitlement arises under the Employment Rights Act 1996 but so far as the material to the entitlement here, is s.141 of the Act which provides that: 1. Where an offer, whether in writing or not is made to an employee before the end of his employment to re-engage him under a new contract of employment, with the renewal or re-engagement to take effect immediately on or after an interval of not more than four weeks after the end of its employment. 2. Where sub section 3 is satisfied it the employee is not entitled to redundancy payment, if he unreasonably refused the offer. Sub section 3 provides however, that the sub section is satisfied where the provisions of the contract as renewed, or the new contract would differ from the corresponding provisions of the previous contract, but the offer constitutes an offer of suitable employment, in relation to the employee. 1. Namely that there is an offer of suitable alternative employment, that is an objective test and then 2. Whether there has been an unreasonable refusal of that offer. That is usually judged in a subjective manner looking at all the circumstances of the employee's decision. There is no issue here as to the first limb. The focus of the Tribunal as to the statutory entitlement was as to the second leg; that is the entitlement to refuse, what could be classed as a reasonable refusal in all the circumstances? The Tribunal found that the Respondents had an offer of alternative employment that was better paid. They found that he never had any intention of taking the Cirencester job, described as and expressed as being a 'suitable offer tailor made for his purposes.' The reason being that he had a much better opportunity in prospect and was the reason why he turned the Cirencester job down. "If all the factors were put together, as it was right to put them together then the Industrial Tribunal was entitled to conclude that the employee had not unreasonably refused an offer of employment."17. "These cases are not always easy." And then at paragraph 18:

18. "To come to a conclusion as one does in variably in cases that consider the capacity of a Tribunal to look at questions of the fact, we consider that the Industrial Tribunal was entitled on the material before it to come to the conclusion that they reached. Accordingly and despite the able argument of Mr Leverson the appeal fails." These cases turn on matters of fact. The Tribunal is an industrial jury. It sees and hears witnesses, it weighs up the facts, and it gives such weight to that which it thinks it ought to give weight to. We have considered with very great care the submissions upon this matter. We cannot conclude that the finding of the Tribunal as to the entitlement for statutory redundancy payment, is a finding that is an error of law or is perverse. One must always emphasise, maybe that this Tribunal may not have gone down that route. We cannot conscientiously say that no Tribunal, reasonably directed could. "A term or not to be implied unless it is, in all the circumstances, equitable and reasonable. But this does not mean that a term will be implied, merely because in all the circumstances, it would be reasonable to do so, or because it would improve the contract or make its carrying out more convenient." a) That there was a express agreement on 27 September 1997 or alternatively whether there was an implied term.