B e f o r e :
THE MASTER OF THE ROLLS (Sir John Donaldson)
LORD JUSTICE NEILL
and
LORD JUSTICE BALCOMBE
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MRS. MARGARET ROSE SPENCER
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First Appellant
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MRS. DOROTHY CHRISTINE GRIFFIN
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Second Appellant
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v.
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GLOUCESTERSHIRE COUNTY COUNCIL
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Respondent
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(Transcript of the Shorthand Notes of the Association of Official Shorthandwriters Ltd., Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London, W.C.2).
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MR. JOHN HENDY (instructed by Messrs. Robin Thompson & Partners) appeared on behalf of the Appellants.
MR. JOHN ROYCE (instructed by the County Solicitor) appeared on behalf of the Respondent,
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
THE MASTER OF THE ROLLS: I will ask Lord Justice Neill to deliver the first judgment.
LORD JUSTICE NEILL: This is an appeal by Mrs. Margaret Spencer and Mrs. Dorothy Griffin against the decision of the Employment Appeal Tribunal given on the 16th October, 1984 when the Employment Appeal Tribunal allowed an appeal by the employers, the Gloucestershire County Council, against the decision of an industrial tribunal sitting at Cheltenham in October 1983. The appeal by the two appellants is by leave of this court.
The two appellants were employed for a number of years by the Gloucestershire County Council (the respondent's) as cleaners at a school in Cheltenham. There came a time, however, in 1982 and 1983 when, owing to financial cuts, it became necessary for the Gloucestershire County Council to make changes in the number of people they could employ as school cleaners. They decided to reduce the number of cleaners from five to four and also to introduce certain other changes in regard to working methods and the times for which the four remaining cleaners would be employed.
There had some time earlier been previous reductions in the hours of work - Saturday cleaning had been cut out and the number of hours for each employee had been reduced from 15 to 12y - but these new cuts led to three of the four cleaners being employed for 11-| hours a week and one having her hours of work cut to 8|-. As a result, the total number of hours available for cleaning work was reduced from 62l hours a week to 43| hours a week, a reduction of something of the order of 30 per cent.
The Gloucestershire County Council offered to these two ladies, among the four who were going to be kept on, these reduced hours of work. It was suggested to them that they could in fact continue in employment at the school doing the cleaning on rather higher pay but at a lower number of hours of work and operating what I may call the new system. But Mrs. Spencer and Mrs. Griffin, together with another lady, rejected the offer. They came to the conclusion that they were not prepared to work under this new system. In due course they were dismissed, and they brought proceedings before the industrial tribunal. The industrial tribunal heard their evidence and heard what was said on behalf of the Gloucestershire County Council. By a majority the industrial tribunal came to the conclusion that the three applicants (as they then were) had acted reasonably in rejecting the offer of alternative employment.
I should refer next to the relevant legislation. It is provided in section 82 of the Employment Protection (Consolidation) Act 1978 that the right to a redundancy payment shall be excluded in certain circumstances. It is only necessary to refer to certain subsections of section 82, and I come at once to section 82(3) which provides as follows:
"If an employer makes an employee an offer (whether in writing or not) before the ending of his employment under the previous contract to renew his contract of employment, or to re-engage him under a new contract of employment, so that the renewal or re-engagement would take effect either immediately on the ending of his employment under the previous contract or after an interval of not more than four weeks thereafter, the provisions of subsections (5) and (6) shall have effect."
It is with subsection (5) of section 82 that this case is particularly concerned. Subsection (5) is in these terms:
"If an employer makes an employee such an offer as is referred to in subsection (3) and either -
(a) ...
(b) the first-mentioned provisions" - i.e. the provisions of the new contract - "would differ (wholly or in part) from those corresponding provisions, but the offer constitutes an offer of suitable employment in relation to the employee;
and in either case the employee unreasonably refuses that offer, he shall not be entitled to a redundancy payment by reason of his dismissal."
The matter which the industrial tribunal had to consider was the impact of subsection (5) on the offer of work under the new system of cleaning which the Gloucestershire County Council had extended to these three ladies. The tribunal as a whole decided, although in the case of one member with some hesitation, that the jobs offered were of suitable employment; therefore subsection (5 Mb) was satisfied. The matter which divided the members of the tribunal related to the last words of subsection (5 ).
The majority view was set out in paragraph 11 of the industrial tribunal's reasons. They were as follows:
"Despite their refusal to give the new hours a trial" - there had been some suggestion that the applicants had been given an opportunity to see how they got on under the new system - "the majority of the tribunal are satisfied that each of the applicants was reasonable in rejecting the alternative employment offered. We accept that they genuinely and reasonably thought that they could not do a satisfactory job in the time and with the number of cleaners allowed. They went into a wealth of detail to support their belief. They did feel that 'enough is enough'. They had had difficulty in keeping up their standards after the 1981 reduction in hours. They felt that the children would suffer under the latest reduction in hours, and, particularly, in the number of cleaners. The majority accept that the mere reduction of 9 minutes per day for each cleaner, even had it not been accompanied by an increase in pay, would not have justified the rejection of the offers. What has satisfied us, however, is our acceptance of the truth of the applicants' evidence and of the reasonableness of their attitude that they concluded that they could not do the job adequately and to a proper standard with the number of cleaners to be allowed."
Therefore the majority found, as they put it a little later in their reasons, that the applicants "were reasonable, in the peculiar circumstances of the case of each of them, in rejecting the offer."
Against that majority decision the Gloucestershire County Council appealed to the Employment Appeal Tribunal. The appeal was allowed. In their judgment, which was delivered by Mr. Justice Popplewell, the Employment Appeal Tribunal recited the fact that the tribunal had accepted that the ladies had pride in their work, that they were still cleaners, and that they had set themselves a proper and high standard. They then went on to consider the question which was posed in this form:
"The question that arises is whether a tribunal is entitled to give any and if so what weight to their views as to the standard to be adopted in their particular job. If a management says, that for one reason or another they were prepared to accept a lower standard, is it a good reason for an employee to refuse to work to that lower standard because it does not come up to his or her own high standards? It is that issue which is raised by the appellants in this case."
Then having mentioned that the decision might have far-reaching results, the learned judge continued as follows:
"In our judgment, it is not a good reason for an employee to refuse to do some work merely because he or she considers that he or she is unable to come up to his or her own high standard where the work is capable of being done to the satisfaction of the management. The standard set by the management cannot be reasonably objected to by the employee as a ground for refusing to do the work in the circumstances, or similar circumstances, of this case. On the facts of this case, we consider that the majority of the tribunal were wrong to take into account that matter. We adopt the view of the dissenting member, where he says that it is not for an employee to determine what standard is appropriate for an employer to achieve. We avoid using the word 'ever' because there may be cases where health to the worker is involved or the work is so substantially different that it would not constitute suitable employment or where the reputation of the employee is involved."
That was the approach of the Employment Appeal Tribunal, and it was for those reasons that they allowed the appeal by the Gloucestershire County Council.
It seems to me, with great respect, that in reaching that conclusion the Employment Appeal Tribunal did not give full effect to the decision which the industrial tribunal reached on the particular facts of this case. Speaking for myself, I do not in any way dissent from the view that it is for the employer to decide what is the appropriate standard of work that he wants carried out. So far I do not think there is any issue between the parties as to that. But that does not answer the separate question as to whether it is reasonable for a particular employee, in all the circumstances, to refuse to work to the standards which the employer wishes to set. That, as I see it, is a separate consideration.
Mr. Royce, in his argument in support of the judgment of the Employment Appeal Tribunal before this court, has sought to argue that all questions which deal with the suitability of the employment must be dealt with under subsection (5)(b), and that it is only what one might describe as the idiosyncratic features of the employment which affect the particular circumstances of an individual employee, such as the distance he may have to travel to work, which can be considered on the question of reasonableness.
Speaking for myself, it seems to me that it only leads to confusion if one tries to draw too rigid a distinction between suitability of employment and the circumstances which may lead an employee reasonably or, in some cases, unreasonably to refuse to accept a particular offer. Some factors may be common to both aspects of the case. It may be that a factor may reflect both on the suitability of the work for the particular employee and also be something which the employee can take into account when he comes to judge whether he can properly accept the employer's offer. I would deprecate trying to draw too rigid a distinction and say that some particular factors must fall exclusively under one heading and other factors under the other heading. The industrial tribunal clearly must look at the two separate points - in other words, whether the employment is suitable in relation to the employee and, secondly, whether or not the employee has unreasonably refused to accept the offer. But, in my judgment, in evaluating those two separate questions, the industrial tribunal are entitled to look at factors which may prove on analysis to be common to both.
Returning to the facts of this case, it seems to me that it cannot be right to say as a general proposition that it is not a good reason for an employee to refuse to do work because he considers that the work he is being asked to do does not come up to a standard which he himself wishes to observe. It all depends on the facts of the case. There may well be cases where an employee wishes to apply a wholly unreasonable standard to the work, and say,
"I am only prepared to work to that standard."
But it seems to me that this is eminently a matter for the industrial tribunal to evaluate in the particular circumstances. In paragraph 11 the industrial tribunal set out the factors which they had in mind. It is clear from the way they expressed themselves in their reasons that they had a substantial amount of evidence from the applicants as to why they (the applicants) thought that the job could not be done satisfactorily in the way in which the employer suggested. . In those circumstances, it seems to me, it was for the industrial tribunal to decide on the facts then before them whether or not each individual employee had unreasonably refused the offer of employment. With all respect to the Employment Appeal Tribunal, it does not seem to me to be a case where they were entitled to overturn the decision of the industrial tribunal.
We were referred in the course of the argument to the decision of the Industrial Relations Court in Morganite Crucible Ltd. v. Street [1972] 1 W.L.R. 918. That was a case where on the facts the Industrial Relations Court thought it right to intervene. It may be that, in view of some of the decisions of the Court of Appeal which have been given in the last five or six years, that case would not have been decided in the same sense today. But comparing one particular case or one particular set of facts with another is not very helpful in this field of the law. I am satisfied that in the case with which we are concerned the industrial tribunal had material before them from which they could come to the conclusion that the employees had not unreasonably refused the offer of alternative employment.
In those circumstances, I would allow this appeal.
LORD JUSTICE BALCOMBE: I agree.
THE MASTER OF THE ROLLS: I also agree.
(Order: Appeal allowed with costs. Application for leave to appeal to the House of Lords refused)
