England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice
		3rd December 1970

Lord Denning, M.R.: This is a short point on redundancy payments. Mr. Mumford was employed by Boulton and Paul (Steel Constructions) Ltd., the well-known steel construction firm, as a steel erector. In January, 1966, a circular was issued, saying that:

"the labour forces of Moreland Hayne, and Boulton and Paul, in the London area will become one unit"; and: "The general area of operation of this new composite department will be in a radius of 30 miles of Charing Cross, and the counties of Essex, Kent, Surrey and Sussex, this area being reasonably accessible to London-based men."

Mr. Mumford had his home at Bow in London. As a result of that circular, he realised that he would have to work anywhere within the London area. But he anticipated that there would always be places to which he could get to his work and back home each day. He was a "London-based" man.

On the 14th October, 1969, there was no work for him in the London area. He was on stand-by. He telephoned the depot and was told there was no work. He telephoned the next day. The superintendent said, "How would you like to go to Daventry?" Mr. Mumford said: "No thanks, too far for me." It was 77 miles distant, far outside the London area. The superintendent of the London area treated this refusal as if it were a breach of contract. He wrote to him this letter on the 14th October, 1969 :

"Confirming our telephone conversation of today's date, when you were asked to travel to our contract at Daventry next week, we assume that, as you are not prepared to do this, your employment with the company ceases as from today. We obviously cannot continue to pay your guaranteed week because no work is available, and, at the same time, employ new men to carry out our contracts. We very much regret your decision, but have no alternative."

So they clearly dismissed him then. The question was whether it was a dismissal for redundancy. If he was employed on "nation-wide" terms, he would have been bound to go to Daventry and would be in breach by refusing. He would not have been dismissed for redundancy, but for breach. If he was employed on "London-based" terms, he would not be bound to go to Daventry: and, as there was no work at that time in London, he would be dismissed for redundancy.

The tribunal, therefore, should have asked themselves simply: was Mr. Mumford a "nation-wide" man or a "London-based" man? Instead of doing so, they asked themselves^ what was the state of mind of his employers? Did they in their own minds dismiss him because they had no work for him? Or did they dismiss him because they thought he was in breach of his contract? That was a wrong approach. It does not matter what the employers thought. What matters is what they did. They dismissed him because they had no work for him in the London area. Seeing that he was a "London-based" man, that was a dismissal for redundancy.

I find myself in agreement with the Lord Chief Justice, and would dismiss the appeal.

Edmund Davies, L.J.: I agree. Although the tribunal did say: "We are satisfied that this" - referring to the document which refers to the appellant's being "London-based" - "was no such restriction as alleged by the applicant", nevertheless they founded their decision really not upon that basis, but upon the same ground as led Bean, J. to dissent in the Divisional Court. He said:^[1]

"I think from first to last Mr. Nash^[2] was genuinely of the opinion that if there was temporarily no work in London he could do one of two things: he could either let the men for whom he had no work have their stand-by pay, which had been the custom in the past, or he could send them elsewhere, and on this occasion instead of providing the stand-by pay, as I think he would have provided if he had known he was obliged to, he decided that he would send them to Daventry, and the only reason for dismissing them was not that they would not be kept on if they were not obliged to go to Daventry, but that he thought that they were in breach of their contract with the employers."

Because the tribunal approached the matter in that way, there came the stage when they told the employers they need call no further evidence. It is quite clear from the submissions which learned counsel, Mr. Blofeld, has made before us today, that the real question to be decided was whether there was a right to send the men out of London. In the light of the document which we have seen, the general practice and what happened over a number of years in relation to the engagement and employment of Mr. Mumford, I agree with my Lord that the Divisional Court were entitled to conclude that this man was London-based and could not against his will be sent to Daventry. The letter which the employers sent to him thereafter on the 14th October made it clear that they were saying that if he did not go to Daventry, they had no work available for him in London. The only conclusion, accordingly, is that his services had become redundant to their needs. I therefore concur in thinking that this appeal should be dismissed.

Megaw, L.J.: I agree. The circular letter of November, 1965, is, it is true, not a contract of employment; nor is it itself a document which varied the pre-existing contract; but as there was in this case no pre-existing contract of employment which defined the geographical area within which the employee could be required to work, and as there is no subsequent contractual document so denned, the circular of November, 1965, may certainly be looked at as being relevant in determining what was the contract of employment in that respect. It may be looked at having regard to its own terms, and if what was done thereafter is shown to have been consistent with what was said in that circular letter, I see no reason whatever why it should not be referred to as being an indication, and it may well be a strong or overwhelming indication, of what was the relevant term of the contract in that respect. I agree with the view expressed by the Lord Chief Justice where he says that, bearing in mind various matters which he had already mentioned, and also the fact that the burden of proof was on the respondents to show that they were entitled to send Mr. Mumford to Daventry, and dismiss him on his refusal, "it does seem to me that that burden has not been discharged". I agree with that view and that this appeal should be dismissed.

Appeal dismissed with costs

Note 1   (1970)I.T.R. at page 228.    [Back]

Note 2   The superintendent employed by Boulton and Paul (Steel Constructions) Ltd.    [Back]