England and Wales High Court (Queen's Bench Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice
		6th November 1970

Lord Parker, C.J.: This is an appeal from a decision of the industrial tribunal dated 20th July of this year, whereby they held by a majority that the applicant before them, the present appellant, was not entitled to a redundancy payment.

The relevant facts can be stated very shortly. The appellant had been in the employ of Mr. Gill, the respondent, for a considerable number of years. Mr. Gill was a farmer farming some 128 acres at Gatherley Moor Farm, Girling West, Richmond, in Yorkshire. The appellant did the work of a general labourer; his main occupation was looking after certain stock, and he did some tractor driving. He was paid in all some £14 7s. 8d.; he was entitled to a pint of milk a day and he lived in a tied cottage.

At the end of 1968, Mr. Bradley, who occupied the adjoining farm, was minded to purchase the respondent's farm, and indeed the purchase went through. It is not found exactly when, but clearly before February, 1969, because in February, 1969, Mr. Bradley took possession of the arable land of the farm. On the 6th April, he took possession of the pasture land and finally in May he took possession of the buildings.

From the very beginning Mr. Bradley had approached the appellant with a view to keeping him on the farm which he was purchasing. There is no doubt that an oral contract was arrived at under which the applicant [appellant] working for Mr. Bradley, would do slightly different work, but work of a farm labourer, that he would get remuneration which was in fact a little more than he had been getting, that his hours of work were not going to be quite so long, particularly at the week-end, and in addition he was going to live in the farmhouse itself, better accommodation than the tied cottage.

Notice, of course, was given by the respondent to the appellant terminating his employment, and that employment came to an end on the 26th April, a Saturday. On the Monday, 28th April, the appellant went to work for Mr. Bradley. Quite clearly Mr. Gill, having given up his farm and dismissed the appellant, prima facie the appellant was dismissed for redundancy. But the question arose here whether there had been a taking over the business of Mr. Gill so that section 13 of the Act came into operation, and following that whether section 3(2) had been complied with, in which case the dismissal would not be a dismissal at all. In the result the respondent, who prima facie was bound to pay a redundancy payment, would not have to do so.

The tribunal found here, and it really was clear on the facts, that there had truly been a taking over of the business. The farm had been purchased and that farm, though run on slightly different lines, and as an extension of the farm owned already by Mr. Bradley, was really the same business, in other words it was a general farm before, it remained a general farm thereafter, though as an extension to Mr. Bradley's farm.

So far as section 3(2) is concerned, there is no doubt that the terms were different, and accordingly the question then arose whether sub-section (2)(b) had been complied with, namely whether the offer of re-engagement was made before the end of his employment under the previous contract.

It is to be observed here that so far as this Court goes, the terms under which he was to work for Mr. Bradley were more favourable to the appellant than those under which he had been working for Mr. Gill. Nevertheless, as it seems to me, under the plain wording of the Act a notice has to be given if there is any difference in the terms of employment, even though they are more favourable to the applicant [appellant].

As was said by this Court in the case of Havenand vs. Thomas Black Ltd.^[1] the employee is entitled to know in sufficient detail what the new terms are of the proposed contract. Accordingly, as the chairman himself found in this case a notice was necessary; under sub-section (2)(b) there was no such notice he held, and accordingly he for his part would have said that a redundancy payment fell to be made by the respondent.

The other two members of the tribunal took a different view, and while it is not altogether clear how they arrived at their decision, it does seem to me that they were accepting that there ought to have been a notice, but they held that a notice had not been given and the notice relied on by them was the form under the Contract of Employment Act which was served on the appellant on Sunday, 27th April, setting out the terms of his employment. They say in paragraph 12 of their reasons :

"The applicant was given a written statement of the conditions of his employment the day before he started work for his employer."

Unfortunately, that is not the test; it is not a question whether the offer was made in writing before he started work for his new employer, but whether, to use the words of sub-section (2)(b), it was made before the end of his employment under the previous contract. Here his employment ended on the 26th April and this notice was not served until the 27th. Accordingly as it seems to me there has not been here a strict compliance with the provisions of sub-section (2) of section 3; accordingly it follows that the applicant [appellant] was dismissed by reason of redundancy and is entitled to a redundancy payment. In these circumstances I would allow the appeal and remit the matter to the tribunal to ascertain the quantum of the payment in default of agreement.

Ashworth, J.: I agree.

Cantley, J.: I agree.

Appeal allowed

Note 1   (1968) I.T.R. 271.    [Back]