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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bass Leisure Ltd v Thomas [1993] UKEAT 47_92_2203 (22 March 1993) URL: http://www.bailii.org/uk/cases/UKEAT/1993/47_92_2203.html Cite as: [1993] UKEAT 47_92_2203 |
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JISCBAILII_CASE_EMPLOYMENT
At the Tribunal
On 22nd March 1993
Judgment delivered on 30th June 1993
Before
HIS HONOUR JUDGE J HICKS QC
MRS M L BOYLE
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants MRS E ANDREW
(of Counsel)
Messrs Maclaren Warner
6th Floor
Fenchurch House
King Street
NOTTINGHAM NG1 2AS
Amicus Curiae MR N GARNHAM
(of Counsel)
HIS HONOUR JUDGE HICKS QC: We heard this appeal with our colleague Mr Galbraith on 21st January 1993 and delivered an oral judgment on the same day dismissing the appeal. We gave leave to appeal to the Court of Appeal. At that hearing the Appellant employers had been represented by counsel, Mrs Andrews, but the Respondent employee had not been present or represented. Immediately after the judgment had been delivered, and before any Order had been drawn up, it appeared to us that on one, possibly material, point of law we had not expressed any conclusion, that we should give further consideration to that point and invite further argument, and that if the Respondent were again not to be represented it was a case in which we should derive assistance from submissions by an amicus curiae. The matter was accordingly re-listed and we gratefully acknowledge the assistance we have derived from further argument from Mrs Andrew on behalf of the Appellants and Mr Garnham as amicus curiae, the Respondent again not being present or represented. No order has yet been drawn up or sealed under Rule 25 of the Employment Appeal Tribunal Rules 1980.
The present judgment is supplementary to our original judgment and should be read in conjunction with it and as following it. We are concerned only with the paragraph near the end of that judgment which reads:
"The debate about whether the test of employment is geographical or contractual does not seem to impinge on this case, given the Tribunal's decision on the effect of the contract in relation to the employers' requirement that Mrs Thomas change her place of work, in the sense of where she reported and so on."
The questions on which we asked for and received further submissions were as follows:
"(1)Is the resolution of the issues in this case affected, or not, by the question whether the criterion for determining the place where the employee was employed for the purpose of S.81(2) of the Employment Protection (Consolidation) Act 1978 is "geographical" or "contractual", as those words are commonly used in discussion of the topic?
(2)If it is so affected, which type of criterion applies?
(3)If the criterion is contractual, is the relevant question:
(i) whether the employer was in the circumstances of the case under consideration entitled to require the applicant to accept the change in his or her (geographical) place of employment which was demanded; or
(ii) whether the employer would have been entitled to require the applicant to accept that change subject to compliance with all relevant contractual conditions (whether or not those conditions were in fact complied with in the instant case); or
(iii) whether the employer was entitled, subject to compliance with all relevant contractual conditions, to require some employees carrying out work of the kind done by the applicant to accept such a change (whether or not the applicant was one of those who could be so required); or
(iv) some other, and if so what, question?
(4)Does the answer to (1), (2), or (3) differ as between heads (a) and (b) of S.81(2)?"
On the date fixed for further argument Mr Galbraith was unexpectedly and unavoidedly absent through illness, but the parties (the absent Respondent by telephone) consented under Paragraph 16 of Schedule 11 to the Employment Protection (Consolidation) Act 1978 to our continuing with the hearing.
The first question is whether we have any jurisdiction to give the matter further consideration at this stage. Mr Garnham submits that we can do so only under Rule 26(1)(c) of the Employment Appeal Tribunal Rules 1980, and that the Employment Appeal Tribunal should be slow to proceed under that provision to review a decision in favour of a party who did not appear.
Rule 26 reads as follows:
"26 Review of Decisions and Correction of Errors
(1) The Appeal Tribunal may, either of its own motion or on application, review any order made by it and may, on such review, revoke or vary that order on the grounds that -
(a)the order was wrongly made as the result of an error on the part of the Tribunal or its staff;
(b)a party did not receive proper notice of the proceedings leading to the order; or
(c)the interests of justice require such review.
(2) An application under paragraph (1) above shall be made within 14 days of the date of the order.
(3) A clerical mistake in any order arising from an accidental slip or omission may at any time be corrected by, or on the authority of, a judge or member."
Mr Garnham referred us to authorities which he submitted should induce a restrictive approach to the exercise of the Tribunal's powers under Rule 26, in particular Blockleys v. Millar [1992] ICR 749. In our view, however, there is a prior question, which is whether recourse to Rule 26 is necessary or appropriate when no order has been drawn up. The Employment Appeal Tribunal is a superior Court of Record (Paragraph 12 of Schedule 11 to the 1978 Act), and it is common ground between Mr Garnham and Mrs Andrew that in the absence of any special provision such a court has an inherent power to reconsider any judgment or order before that judgment or order is perfected. Mr Garhnam submits that Rule 26 supersedes that jurisdiction. We do not see why. It does not expressly so provide, and no implication to that effect is necessary to give Rule 26 scope and efficacy, since that is sufficiently met by the fact that it enables an order to be reviewed after it is drawn up. Assuming, for the moment, that Mr Garnham is right in his submission that it also applies before perfection of the order, nevertheless the two jurisdictions, although on that assumption they overlap in time and function, are directed to different ends: the inherent jurisdiction is concerned with the general right and duty of a superior court to avail itself of any proper opportunity for adequate argument and reflection before it becomes functus officio by the perfection of its order; Rule 26 gives a statutory power of review on specified grounds, whether or not the Employment Appeal Tribunal would otherwise be functus.
The next question was whether, having jurisdiction, we should exercise it. We decided to do so and now give our reasons. In our view it is a jurisdiction to be exercised sparingly and with caution. Regard should be given to whether any injustice would or might result, and in particular to whether any party has acted on the oral judgment to his or her detriment. Disproportionate postponement of finality or expenditure of costs is to be avoided. Nevertheless, there is also a legitimate interest of justice in not promulgating avoidable error. Here questions had arisen in our minds before we dispersed after giving oral judgment, the parties were put on notice promptly, and there is no suggestion that either had acted on the oral judgment to their detriment. It therefore seemed to us to be a proper case in which to proceed.
Having reached that conclusion, we need not decide whether Rule 26 also is available before the order is drawn up or, if so, whether jurisdiction under it arises or should be exercised in such circumstances as these. Clearly, "order" in sub-rule (3) means the order as drawn up, although we understand the argument that it must have a wider meaning in sub-rule (1), because otherwise delay in drawing up the order might mean that the right to reply was lost before it arose, if "the date of the order" in sub-rule (2) means the date of pronouncement in accordance with the usual understanding. It is also arguable, to our mind, whether Mr Garnham is right in submitting that if Rule 26 applies only sub-rule (1)(c) is relevant; it is not obvious to us why the "errors" which can be corrected under sub-rule (1)(a) are confined to purely formal errors when such a strict time limit applies and the "slip rule" provided by sub-rule (3) enables formal errors in the guise of "clerical mistakes" to be corrected at any time.
We accordingly turn to the substantive questions argued before us. Although set out above in the order communicated to the parties, which arose from the way in which we expressed matters in the relevant paragraph of our initial judgment, they are in fact inter-connected in a way which makes isolated consideration of any one of them inadequate. In particular the way in which what has been called the "contractual" test can or should be applied affects both the question whether it is the correct test and whether the result in the present case turns on the choice of test.
Sub-section (2) of S.81 of the Employment Protection (Consolidation) Act 1978 was quoted in our earlier judgment, but for convenience of reference we set out all the material parts of sub-sections (1) and (2):
"81 General provisions as to right to redundancy payment
(1) Where an employee who has been continuously employed for the requisite period -
(a) is dismissed by his employer by reason of redundancy, or
(b) ...,
then, subject to the following provisions of this Act, the employer shall be liable to pay to him a sum (in this Act referred to as a "redundancy payment") ...
(2) For the purposes of this Act 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 a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish.
..."
Two preliminary observations may be made about the construction of sub-section (2):
(i)It is inconceivable that the expressions "the place where the employee was so employed" in (a) and "the place where he was so employed" in (b) have other than the same meaning. No-one argued for any distinction, and we need not therefore discuss question (4) further.
(ii)The use of the definite article implies that there is always one identifiable "place" where the employee is employed, although that does not, of course, exclude the question what may be the extent of that "place".
We consider it important, also, to distinguish at the outset between questions which may arise at different stages in the consideration of a claim for redundancy payment, and which may involve consideration of some or all of the same facts or contractual terms, but for different purposes.
First, there must have been a dismissal, and if what is alleged is a constructive dismissal, and if the breach relied upon is a requirement by the employer to work in a different geographical setting (to use a neutral term), then there can be an issue whether the employer was entitled to impose that requirement. That is plainly an issue to be determined by reference to the terms in the contract. If the employer was so entitled it makes no difference to the outcome of this issue whether the entitlement arose out of a term defining the place of employment widely enough to include the new situation or out of a term entitling the employer to change the place of work. On the other hand, if the exercise of the employer's rights is subject to the fulfilment of conditions (for example as to consultation or as to suitability of location) then it does make a difference whether those conditions have been fulfilled, and that may result in different conclusions as between different employees notwithstanding that in all other respects their cases are the same.
Secondly, the dismissal must be by reason of redundancy, as explained by S.81(2). Clearly a contractual term defining the place in which the employee is employed widely enough may exclude a finding that the employer has ceased to carry on business there or that the requirements of the business for employees to carry out work of a particular kind there have ceased or diminished. A term entitling the employer to change the place in which the employee is to work, however, does not on the face of it have that effect; indeed, the need to invoke it may arise precisely out of the cessation or diminution of business or of work of the relevant kind at the employee's place of employment. On the other hand it is difficult, at this stage, to see how issues of cessation or diminution of business or of work of a particular kind can rationally be answered differently for different employees employed in the same kind of work at the same place of employment, and in particular how they can be answered differently by reason only of the fulfilment or non-fulfilment of conditions to be complied with by the employer.
Thirdly, if there is a dismissal for redundancy, the employee is nevertheless not entitled to a redundancy payment if he or she unreasonably refuses an offer, complying with S.82(3) -(5) of the 1978 Act, of "suitable employment". Clearly this provision may defeat the employee's claim notwithstanding that the employer has no contractual right to move the employee or has chosen not to exercise it, and notwithstanding a factual approach to the meaning of "place where he was so employed", leading to a finding of redundancy at the previous stage of the enquiry.
Against this background we turn to the meaning of "the place where [the employee] was so employed" in S.81(2)(a) and (b). We begin with the obvious but nonetheless important point that the question "Where is X employed?" is on the face of it a factual question. Indeed, where there is no contractual term, express or implied, requiring mobility we do not see how it can be answered other than factually, that is to say as being equivalent to "Where does X work?"
It is arguable that that is all that needs to be said, but for ourselves we should not be disposed to maintain that contractual provisions are irrelevant, or that "Where does X work?" is always an adequate paraphrase. The use of the words "so employed", relating back to the phrase "employed by [the employer]", directs attention to the relationship between the parties, and the definite article in "the place" suggests a certain fixity which tends against equating the place of employment with, for instance, each location of a peripatetic "place of work" successively. Without needing to consider or decide whether the parties could arbitrarily define the "place where the employee is employed" in terms outside the limits of the objective realities, we see no reason why there cannot be valid and effective contractual terms, express or implied, evidencing or defining the place of employment and its extent within those limits, so that (for example) the place where a steel erector is employed could be the area within which he can be required to attend at construction sites to perform his duties. That is supported by the fact that the preposition before the expression to be construed is "in", not "at".
A construction which looks beyond those bounds and treats the "place where the employee is employed" as including any place where he or she can contractually be required to work, whatever the nature of the term under which that requirement is imposed, whatever the limits to be observed, and whatever the conditions to be complied with before the power to impose it can be exercised, seems to us to raise substantial difficulties.
What, for example, of an express term: "The place where the employee is employed by the employer is A but the employer shall be entitled upon one month's notice to require the employee to move to `B', and if the employee complies with such a requirement then `B' shall thereupon become the place where she is employed"? To say that `B' as well as A is from the outset the place where the employee is employed would be to fly in the face of the express words of the contract, and to hold that if the employer ceases to carry on business at A, offers the employee a job at B (but without invoking his right to require acceptance), and dismisses the employee upon non-acceptance of the offer, that is not a dismissal for redundancy would compel the paradoxical conclusion that it was an unfair dismissal, because it seems difficult, if not impossible, to fit it into one of the categories of "fair" dismissal other than redundancy. The natural and just conclusion is that it is a dismissal for redundancy, and that the employee's entitlement or not to a redundancy payment turns on whether the employment offered at B is suitable and, if so, whether the refusal of the offer was unreasonable.
What, again, if X and Y, both childless, work at A but their contracts contain identical terms that their employer is entitled to require any employee to move to B, except that no employee with a child aged less than 4 can be moved without her consent? Leaving aside the problem raised in the last paragraph, and assuming therefore in favour of the construction under consideration that X and Y initially have both A and B as the places where they are employed, what happens when X has a baby? Is B still part of the place where she is employed, or does it cease to be so, or is the position indeterminate unless and until she is asked to move and either gives or withholds her consent? Either of the first two solutions is arbitrary and unfair as between X, Y and the employer, while the third may make the question whether the employer has ceased to carry on business in the relevant place, or whether labour requirements there have diminished, impossible to answer, because if the employer dismisses X on closing down A without requiring her to move to B, she will never have to decide whether to consent, and the event which would have crystallised the status of B as part of her place of employment or not will not have occurred.
We appreciate that if a distinction such as we have recognised is drawn between different types of contractual provision there will be debateable borderline cases, but that simply reflects the infinite variety of factual situations and contractual terms, and the difficulty of applying to them a statutory test which requires the identification of a unique "place where the employee was ... employed".
It seems clear to us that the references to "the place where [the employee] was ... employed" in S.81(2)(a) and (b) require that the location and extent of that "place" be ascertainable whether or not the employee is in fact to require to move and therefore before any such requirement is made (if it is), and without knowledge of the terms of any such requirement, or of the employee's response, or of whether any conditions upon the making of such a requirement have been complied with. To attempt to avoid these difficulties by postulating that only terms giving the employer an unqualified right to change the place of work will have the effect of enlarging the "place where the employee is employed" simply transfers the "borderline" referred to above to different and even less defensible territory.
We should therefore conclude, unless led elsewhere by authority, that the question what is the place where an employee is employed for the purposes of S.81(2)(a) and (b) is primarily a factual one, and that the only relevant contractual terms are those which go to evidence or define the place of employment and its extent, rather than to make provision for it to be changed.
Does authority require a different conclusion? The earliest decision to which we were referred was McCulloch v. Moore [1968] 1 QB 370. In that case the employers carried out maintenance and installation work for Gas Boards and the employee was involved in laying gas mains and other services for the South Eastern Gas Board in Sussex. There was a working rules agreement under which employees could be transferred to other work. The employers' contract for work in Sussex came to an end and they gave notice to the employee that they had no further work in the Sussex area but offered him "continuation of employment" in the Reading/Aldershot area, East Midlands, Luton area or Scotland. The Industrial Tribunal had upheld his claim for a redundancy payment on the basis that there was an implied term of the contract or a custom of the trade overriding the working rules agreement.
A very strong Divisional Court (Lord Parker CJ, Diplock LJ and Ashworth J) dismissed the employers' appeal, but on different grounds. They held that, whatever the employers' powers under the working rules agreement, they had not sought to invoke them. Their notice was simply a notice of dismissal with an offer of new employment elsewhere. Lord Parker read the words of S.1(2)(a) of the Redundancy Payments Act 1965, corresponding to S.81(2)(a) of the 1978 Act, and continued:
"In my judgment the employer did cease to carry on business in Sussex, where the employee was so employed and, accordingly this was a dismissal by reason of redundancy." (p.365E)
He rejected an argument that the employee was in a nation-wide employment in England, Scotland or Wales, and continued:
"It seems to me `in the place where the employee is employed' is condescending to the particular, not necessarily one building rather than another, but to a defined area." (p.365F)
Diplock LJ agreed that the appeal should be dismissed for the reasons given by Lord Parker, and added:
"Those reasons, as will be seen, ... do not depend upon the construction of the working agreement ..." (p.365G)
Ashworth J agreed.
In our view that is clear authority for the application of a factual test, and necessarily involves a decision that whatever the true construction and ambit of the working rules agreement its transfer provisions were irrelevant to the ascertainment of the "place where the employee was employed".
Next, there is the only case on the subject to have reached the Court of Appeal: O'Brien v. Associated Fire Alarms [1969] 1 All ER 93. The employees were electricians employed at the employers' Liverpool branch office, which controlled an area from Mid Wales to Cumberland, but had always been engaged on work in the Liverpool area to which they could travel from their homes each day. When work fell off in the Liverpool area the employer required them to work in Cumberland, beyond daily reach, and when they refused dismissed them. The Industrial Tribunal held that the employees were in breach of an implied term of their contract in refusing to comply and rejected their claims. The Division Court dismissed their appeals.
The Court of Appeal unanimously allowed the employees' appeals, holding that there was no such implied term. Lord Denning MR said:
"I think that the only term to be implied in their contracts was that they should be employed within daily travelling distance of their homes or, if you please, within a reasonable distance of their homes. ... . The `place where they were employed' was not the whole of the north western area. It was an area within travelling distance of their homes." (p.96, C-D)
Mrs Andrew relied on that passage, but it seems to us that it is equally consistent with both of the rival contentions before us. Salmon LJ said in terms:
"I do not think it is necessary for the purposes of this case to decide the rather difficult point whether the words ... `the place where the employee was so employed' refer to the place where the employee actually worked or to the place where under his contract of employment the employee could be required to work, and I shall express no opinion upon it." (p.96 I)
which suggests that the question had been canvassed in argument. Edmund Davies LJ founded his concurrence on the ground that no relevant contractual term had been established on the evidence, and that the statutory presumption of dismissal for redundancy was therefore not displaced.
We conclude that O'Brien does not determine the issue before us one way or the other.
In Stevenson v. Tees-side Bridge & Engineering [1971] 1 ER 296 the employee was a steel erector. There was no express term as to mobility but it was well known that travelling round the country was a feature of such employment, and the contract contained terms as to travelling and subsistence allowances. When offered work at three alternative sites which would have involved staying away from home he refused, not on the ground that he was not employed to do so, but because he considered the overtime prospects poor. He was dismissed. The Industrial Tribunal dismissed his application for a redundancy payment.
The divisional court consisted of Lord Parker CJ and Ashworth J, who had been parties to the decision in McCulloch, together with Browne J. They dismissed the employee's appeal. Lord Parker said:
"What then, one asks, was the place of employment where he was employed? In dealing with an industry such as this, it seems to me that, in the absence of an express term, there must be an implied term of some nature. As I have said, in O'Brien's case a term was implied that the place of employment was the area which was within commuting distance of the man's home, and that was based largely on what had happened. I ask myself: how could one ever imply that term in the present case when one sees the whole history of the appellant's employment going from place to place, as is conceded, without any objection on his part? Short of saying that the place of employment is the very last site at which he was working, so that when he works at another he is really re-engaged, it seems to me that there is every reason here to imply a wide term to give effect to the business efficacy of the contract of employment."
Ashworth and Browne JJ agreed.
It seems clear to us that Lord Parker, both in relation to the facts of that case and in his interpretation of O'Brien, is concerned with what term should be or can be implied as to the extent of the place of employment, not with "transfer" terms of the type dealt with in McCulloch, which is not referred to in the judgments and was not apparently questioned. Moreover, the basis of the implied term is the factual background, and in particular the peripatetic nature of the work.
In our view, therefore, the authorities in the Divisional Court down to 1971 are in accord with our own provisional opinion.
In Sutcliffe v. Hawker Sidley Aviation [1973] ICR 560 the employee was an aircraft electrician. His contract contained an express term that he was "prepared and willing to work at the request of the company ... at any station within the United Kingdom", and there was provision for an accommodation allowance while he was living away from home. The employee lived in Norfolk and was apparently based at RAF Marham, although he had on various occasions been posted to other places in England. When required to go to RAF Lossiemouth or (by substitution) RAF Kinloss, both in Scotland, he refused and resigned. The Industrial Tribunal found that to be a constructive dismissal, but dismissed his claims for a redundancy payment and compensation for unfair dismissal.
The National Industrial Relations Court was, not surprisingly, dubious about the finding of constructive dismissal, but there was no appeal against it. Clearly, if in truth there was no breach on the employers' part in requiring the employee to move, then there was no dismissal and the issue of redundancy should never have been reached. The NIRC, however, considered itself bound to accept the finding of constructive dismissal, although Sir John Donaldson said in terms:
"... the employee was only being asked to perform his contract when he was asked to work at RAF Kinloss" (p.566H)
On the issue of redundancy Sir John Donaldson, giving the judgment of the court, said:
"... The words `where he was so employed' in section 1(2)(b) do not mean `where he in fact worked'. They mean `where under his contract of employment he could be required to work.' The section is intended to cover two different situations. The first is where an employer suffers a general diminution in work of a particular kind and has to dismiss employees in consequence. In that situation there is a redundancy under the main provisions of the paragraph, namely, that work of a particular kind has diminished. But the section is also intended to give a worker the right to a redundancy payment where, although the overall requirements of the employer for work of a particular kind is unaffected, the requirement for work of that kind at the particular place where alone the employee has agreed to work under his contract of employment has diminished. Were it not for the extra words which are included in the paragraph, an employee who had agreed to work only in London, where work had diminished, would have no claim for a redundancy payment if the employer could say: `Certainly there is less work in London, but the amount of work in Birmingham has increased and viewed as a whole there has been no diminution in the amount of my requirements for work of this particular kind. Therefore there is no redundancy situation.' Parliament has met that by putting in these additional words, which enable the London employee who has contracted to work only in London to say: `No, the work in the particular place where I have contracted to work has diminished. I am entitled to my redundancy payment'."
At the close of the judgment he said:
"The present case is in fact very similar to Stevenson... . If it were necessary to rely on authority to support our decision, we should rely upon that case." (p.567G)
Sutcliffe is usually regarded as marking a decisive change of approach, and that is true if the phrase "where under his contract of employment he could be required to work" is to be read in isolation as definitive. The reasons given, however, do not explain why that interpretation is necessary, and the reference to Stevenson suggests that the NIRC regarded the express term in Sutcliffe as being to much the same effect as the implied term in Stevenson. McCulloch was cited in argument but not referred to in the judgment. What was not examined was whether Mr Sutcliffe's work was peripatetic in the same sense as Mr Stevenson's and how far any differences in that respect were relevant.
In United Kingdom Atomic Energy Authority v. Claydon [1974] ICR 128, however, the break with the earlier authorities is clear. The employee was a draughtsman who had worked in the employers' Orfordness establishment from 1964 to 1971. The contract reserved the right to the employers to require the employee to work at any of their establishments in Great Britain or in posts overseas. If posted from one establishment to another he was entitled to removal expenses. It is clear from the nature of the work and from the reference to removal expenses rather than to travelling and subsistence allowances that that was a term about transfer from one "place" to another, not about the extent or area of a single "place".
The employer decided to close Orfordness and the employee was offered a transfer to Aldermarston, and on refusing was dismissed. The Industrial Tribunal held that the dismissal was for redundancy. The NIRC allowed the employers' appeal. In the judgment of the court Sir John Donaldson mentioned McCulloch, but disposed of it by referring to Stevenson as being inconsistent with it. He then cited the passage from Sutcliffe which we have set out above and continued:
"Applying the same construction to the present appeal, the place where the employee was employed was the employers' establishment as a whole and not merely that at Orfordness." (p.131E - 132E)
The judgment goes on to formulate and reject an argument that the contract was to work at Orfordness unless and until the employee was required to work elsewhere:
"In our judgment it is clear that the employee was employed generally in the employers' service and not solely at Orfordness." (p.132E - 133A)
In our view, for the reasons we have given, McCulloch and Stevenson are in no way inconsistent, although different facts led to different results. Claydon is, however, substantially indistinguishable from McCulloch and therefore inconsistent with it. The facts of Sutcliffe, so far as they appear from the report, might arguably have fallen on the McCulloch or the Stevenson side of the line, so the result, as distinct from the reasons, is not necessarily inconsistent with either.
In later cases, of which Rowbotham v. Arthur Lee & Sons [1975] ICR 109 and Rank Xerox v. Churchill [1988] IRLR 281 were cited to us, Claydon and/or Sutcliffe (as understood in Claydon) have been followed in the Divisional Court or the Employment Appeal Tribunal. We were also referred to Wilson-Undy v. Instrument & Control [1976] ICR 508, but although O'Brien and Claydon were cited no cases are referred to in the judgment, and the decision does not seem to have turned on the present point.
The situation, therefore, is that there is persuasive, but not binding, authority both in support of and contrary to the view at which we would arrive on principle. Although the contrary authorities have now stood for some 20 years, and we should in ordinary circumstances be reluctant to depart from such a settled practice, we find the older cases the more persuasive and, more particularly, are much impressed by the difficulties and anomalies which, on analysis, attend the application of the Sutcliffe test as explained in Claydon to the wide variety of transfer provisions which are likely to be met in industrial practice.
We should add, for completeness, that we invited submissions on the question whether the construction of S.81(2) is affected by its legislative history, and in particular by the fact that it re-enacted provisions already interpreted in the pre-1978 cases. Neither Mrs Andrew nor Mr Garnham was disposed to submit that this cast any light on these issues, having regarding to the fact that the 1978 Act was a consolidating Act, and we agree.
Our conclusion on question (2) raised for further argument is therefore the one already provisionally stated, namely that the place where an employee was employed for the purposes of S.81(2)(a) and (b) of the Employment Protection (Consolidation) Act 1978 is to be established by a factual inquiry, taking into account the employee's fixed or changing place or places of work and any contractual terms which go to evidence or define the place of employment and its extent, but not those (if any) which make provision for the employee to be transferred to another. In the present case Clause 3.2 is plainly a "transfer" provision - it uses that very word and also the phrase "alternative place of work". Clause 8.3 also is concerned with a "geographic area" which may be "altered", and limits (personal to each employee) are imposed on the employers' freedom to make any such alteration.
As to question (3), it seems clear from the words "could be required" in Sutcliffe, from the insistence in Claydon that even before any requirement to transfer the place of employment included all the places to which the employee might have been required to go, and from the past tense of "was so employed" in S.81(2) that on a "contractual" test in the sense understood in the Sutcliff/Claydon line of authorities the criterion is whether the employer would have been entitled to require the employee to accept the change in question, subject to compliance with all relevant contractual conditions, whether or not the requirement was actually made or the conditions were actually complied with in the instant case.
That answer to question (3) is one of the reasons for our answer to question (2) and also bears on question (1), which is in essence whether we were right in our original judgment to assume that the nature of the test of "place of employment" was irrelevant to our decision.
We feel no assurance that we were. The assumption resolves itself into three parts:
(i)that on a "geographical test" Mrs Thomas' "place of employment" was the Coventry Depot, so that its closure made her redundant;
(ii)that on a "contractual test" the issue whether there was a transfer outside the "place of employment" was indistinguishable from the issue whether there was a constructive dismissal by reason of the employers' breach of contract;
(iii)that as the issue of constructive dismissal had been resolved against the employers the same would therefore be true of the redundancy issue on a "contractual test".
As to (i) we remain of the view that on the criteria set out in our answer to question (2), which are within the category of what is commonly called a "geographical" test, Mrs Thomas "place of employment" was the Coventry Depot. The crucial assumption is (ii). For the reasons already set out we do not, on reflection, consider the two issues mentioned there to be indistinguishable. The result might have been the same but need not; an inquiry whether the employer had ceased to carry on business (anywhere) in "the place where the employee was ... employed" in the Sutcliff/Claydon sense would have been a different one from that to which the Industrial Tribunal directed its attention when considering constructive dismissal, and was not carried out by them.
We have already dealt with question (4).
In the result, therefore, our decision stands, but on the basis that the issue where Mrs Thomas was employed is to be resolved solely by the criteria set out in our answer to question (2) above. That does not in the event, as we have indicated, alter our conclusion as to where that place was, nor does it affect any other part of our initial reasons.
There will still be leave to appeal.
