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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Laing v Thistle Hotels Plc [2001] ScotCS 248 (2 November 2001)
URL: http://www.bailii.org/scot/cases/ScotCS/2001/248.html
Cite as: [2001] ScotCS 248
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD EASSIE in the cause GORDON LAING Pursuer; against THISTLE HOTELS PLC Defender:
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Pursuer: Napier; Simpson & Marwick, W.S.
Defender: Hanretty; Brechin Tindal Oatts
2 November 2001
[1] While there is also a claim for a relatively minor sum said to be due to the pursuer by reason of an alleged insufficiency in the period of notice allowed by the employer - the defenders - the principal claim advanced in this action is for payment of a redundancy payment in terms of the contract of employment between the pursuer and the defenders. The claim for a redundancy payment was the subject of earlier debate, following which an opinion was delivered on 23 April 2001. The issues regarding that claim which now arise for decision, following proof, are whether the alternative position offered to the pursuer on his post becoming redundant was suitable alternative employment, and if so, whether he acted unreasonably in rejecting that offer.
[2] In approaching those issues it is appropriate to outline the pursuer's employment history prior to his taking up the post which became redundant. The pursuer, who was born in January 1945 and was thus 54 years of age when his post became redundant in early 1999, began work with Scottish & Newcastle Breweries as a clerk in their head office. In 1963 he acquired a stocktaking function, also operating from the company's head office. In 1973 he became an area controller engaged in stocktaking and audit work. In 1980 he acquired a position in the department concerned with the development of systems but in 1981 was appointed as a relief area controller with special auditing duties. In 1983 that post became redundant and the pursuer was provided with an alternative position as an administrative controller, from which he later became assistant to the regional controller. As was confirmed in evidence by Mr Godfrey, the defenders' director of employee relations, all of those posts were held within the head office of either Scottish & Newcastle Breweries or its associated company, Thistle Hotels.
[3] In 1993 the pursuer was appointed as manager of a multi-storey car park in Edinburgh, namely the Greenside Car Park. The precise ownership of the car park within the companies composing what might loosely be termed the Thistle Hotel Group was not clear but at all events the car park undertaking was acquired by National Car Parks Ltd ("NCP") in January 1999. It appears that, apart from the pursuer, the contracts of employment of all the employees working in the Greenside Car Park were transferred to NCP pursuant to the Transfer of the Undertakings (Protection of Employment) Regulations 1981. Since NCP already operated another multi-storey car park directly across the street from the Greenside Car Park, NCP had no evident need for two car park managers. Whether for that or some other reason it appears to have been arranged that the pursuer's contract of employment would not be transferred to NCP but that he would remain in the defenders' employment. For the purposes of the present proceedings it is accepted by the defenders that if the pursuer is entitled to a redundancy payment under his contract of employment they are responsible, in a question with the pursuer, for making that payment. It is also accepted of course that when NCP took over the Greenside Car Park, the post which the pursuer then held as manager became redundant.
[4] As manager of the Greenside Car Park the pursuer was answerable to an operations director - Mr Arkley - in the defenders' head office in Leeds. In addition to managing the Greenside Car Park the pursuer had certain duties and responsibilities in respect of the car park of the Thistle Hotel in Glasgow. It was clear however that the Glasgow hotel car park formed only a minor part of the pursuer's responsibilities. He, or his deputy, would normally make a weekly visit to Glasgow in order to deal with any outstanding matters and check that all was in order.
[5] The Greenside Car Park offered some 880 spaces for general public use and there was also provision of parking space on a longer term contract basis. The document No. 6/11 of process contains the pursuer's description of his job as a car park manager given to his solicitors at an early stage following his post becoming redundant. The document No. 7/25C of process was stated by Mr Godfrey to be Mr Arkley's description of the pursuer's job as car park manager. Mr Arkley did not give evidence. It is not clear when the document 7/25C was prepared but it was evidently sent by fax to a recipient in Glasgow, other than the Glasgow Thistle Hotel, on 11 January 1999.
[6] Despite some difference in emphasis and details in those documents certain aspects of the pursuer's responsibilities are clear. Among other responsibilities the pursuer, as manager, was charged with the training and management of the staff of the two car parks, in whose recruitment he also played a principal role. The number of staff employed at the Edinburgh car park, under the pursuer's control, amounted to 10 with a further 4 in Glasgow. The pursuer was responsible for ensuring that the revenues from the car park were appropriately collected, recorded and banked. It appears that the Edinburgh car park produced an annual revenue in excess of £750,000. The pursuer also bore the responsibility for compiling statistical information for provision to the head office, including budgetary statistics. The principal item which required to be purchased for the car park consisted of the supply of blank parking tickets. The pursuer was responsible for obtaining quotations for these, which were submitted, with his recommendation, to Mr Arkley for final approval. The pursuer evidently had authority to commission other supplies without reference to head office. The pursuer had responsibility for maintenance contracts and for ensuring that maintenance contractors, such as the lift engineers, properly carried out their obligations to maintain plant and equipment in efficient order. Also among the pursuer's responsibilities was that of liaising with the police in respect of security in what was - at least in Edinburgh terms - a large city centre car park. The Greenside Car Park also organised car boot sales on Sunday mornings and superintendance of those was part of the pursuer's responsibility. A further feature of the pursuer's job, recognised in the defenders' document 7/25C, was that which required the pursuer "to advise and assist with other car park operations within the Group". That feature is understandable in the sense that the Greenside Car Park was the largest, and only free-standing car park in the Group's undertaking. The pursuer gave evidence of instances in which he had been approached for such advice respecting in particular barrier and ticketing systems by those in charge of hotel car parks elsewhere in the United Kingdom. The documented instances post-dated initial news of the NCP takeover of the Greenside Car Park and were collated by the pursuer as an endeavour to persuade his employer to appoint him to a post as national car parks manager but they indicate recognition from others in the defenders' undertaking of the pursuer's having a particular expertise in such matters.
[7] The pursuer in his own job description described his hours of work as being "35 hours per week or as required". His evidence may be summarised by saying that he considered himself to be subject to flexible hours and not tied to a fixed timetable. Thus, at weekends, he would commonly combine a supervisory visit to the car park with going to the city centre for private purposes.
[8] The defenders did not tender any witness with direct, detailed knowledge of the scope and nature of the pursuer's responsibilities at the Greenside Car Park. As already mentioned, his superior was not led as a witness and the other witnesses tendered by the defenders, not being in the chain of responsibility for the car park at Greenside, were not in a position to have direct knowledge of what the pursuer did. I thus accept the pursuer's evidence that he enjoyed considerable flexibility in his selection of the hours during the week when he would be present at the car park. It was not suggested by any of the defenders' witnesses that the pursuer did not attend diligently to his managerial duties. My impression from the evidence as a whole was that the pursuer was largely left to get on with the management of the car park on his own initiative and he successfully achieved that task without any need for any close supervision or intervention from head office.
[9] When it became apparent that the pursuer's position as car park manager would be redundant the post which the defenders offered to him by way of alternative employment was styled by them as that of "Essential Services Manager" at their Glasgow Thistle Hotel.
[10] Before turning to the particular content of the post as Essential Services Manager ("ESM"), it may be noted that the ESM post was not a pre-existing post which had become vacant on the departure of a previous occupant but was one to be created for the pursuer following the NCP takeover of the Greenside Car Park. The concept apparently came from the defenders' operations director for Scotland, Mr Timothy Hunt, who, while having responsibility for hotels in the Group throughout Scotland, was based at the Glasgow Thistle. By way of background, it appears that in December 1998 there had been what Mr Hunt described as a very serious breach of security within the stores of the Glasgow Thistle Hotel. It involved the theft by the two storemen then employed of liquor purchased by the hotel at a cost of some £8,000. The storemen involved were dismissed and replaced but Mr Hunt had continuing concerns relating to the quality of supervision being given by the particular stores manager then employed, whom Mr Hunt believed to have allowed a "too cosy" relationship to develop between the storemen and certain suppliers. In early January 1999 Mr Godfrey, the defenders' director of employee relations in Leeds, who had been faced with the task of seeking suitable alternative employment for the pursuer as a result of the arrangements for the NCP takeover of the Greenside Car Park, telephoned Mr Hunt to ask if Mr Hunt were aware of any employment in Scotland which would be available for the pursuer. In response to that enquiry Mr Hunt mentioned the problems which he had experienced in the stores at Glasgow Thistle and suggested a possible role for the pursuer in regard to their resolution. Although Mr Hunt had no responsibility for the Greenside Car Park, which reported directly to Mr Arkley in head office, he knew of the pursuer and was aware that he had a reputation for diligence, if not strictness, in his supervision and management of the Greenside Car Park. In particular, Mr Hunt was aware that some time previously the pursuer had been instrumental in detecting a fraud which was being carried on by employees in the car park at the Glasgow Thistle. Although at certain points in his evidence in chief, perhaps in response to the tenor of the questions from counsel for the defenders, Mr Hunt gave the impression that he had already conceived the ESM post and identified the pursuer as the suitable candidate for it before being asked by Mr Godfrey whether some alternative post for the pursuer might exist, I do not consider that impression to be an accurate one. There was no evidence that prior to Mr Godfrey's enquiry relating to a possible alternative employment for the pursuer Mr Hunt had formulated any proposals for a new post of ESM with a view to general recruitment or to the pursuer's recruitment. Put shortly, the idea of creating a post of ESM was a reaction to the need to find alternative work for the pursuer, given that by some arrangement he would not transfer to the employment of NCP in terms of the TUPE Regulations
[11] It is evident that Mr Godfrey was willing that the company proceed with Mr Hunt's suggestion. Mr Godfrey was unaware of any other possibility which might be put to the pursuer. He left it to Mr Hunt and Mrs Jan Meldrum, the Regional Human Resources Manager, to put the proposal to the pursuer. The pursuer was accordingly asked to, and did, attend a meeting in Glasgow on 18 January 1999 at which Mrs Meldrum and Mr Hunt were present and at which the proposal was discussed. Following the meeting Mrs Meldrum wrote a letter, dated 20 January 1999 (7/2 of process), in which she set out the offer in these terms:
"Job Title - Essential Services Manager.
Duties/Responsibilities - Management of the stores and car park at Glasgow Thistle.
There will also be the requirement on occasions to carry out audits in Hotels at the direction of the operations director for Scotland.
Salary - Unchanged.
Benefits - Unchanged.
Hours of Work - Stores will have to be manned Monday to Friday and every alternate Saturday morning. As manager of the function you would be responsible for ensuring these hours (sic) are covered."
In her letter Mrs Meldrum stated that a response was expected by 29 January 1999. The pursuer replied to Mrs Meldrum's letter of 20 January 1999 by a letter dated on the following day in which he wrote that:
"it was stated that I would receive from you a full Job Description and was advised that Redundancy was not an option, but Early Retirement was and that details of this option would be sent to me by you."
He went on to say that he regarded it as only fair that all options be put in writing before he was required to make a final decision.
[12] In their evidence both Mrs Meldrum and Mr Hunt agreed that at the meeting on 18 January 1999 the pursuer had indeed insisted on first receiving a full written job description. No written job description had then been available none having been prepared prior to the meeting. It appears that following the pursuer's letter of 21 January a job description was prepared by the resident hotel manager and Mr Hunt, which was then sent to the pursuer. That job description is the document No. 7/25A of process which is in these terms:
"JOB TITLE: ESSENTIAL SERVICES MANAGER
RESPONSIBLE TO: RESIDENT MANAGER/GENERAL MANAGER
RESPONSIBLE FOR: PURCHASING, STORING, ISSUING, SECURITY OF ALL GOODS RECEIVED
MAINTENANCE & CONTROL OF CAR PARK AREA AND TRAINING OF STAFF
HOURS OF WORK: MONDAY - FRIDAY 8AM - 4PM
(WEDNESDAY 8AM - 12 NOON)
SATURDAY 8AM - 12 NOON
DESCRIPTION OF DUTIES:
1. Ordering and maintaining all stock levels for food, liquor, stationery, cleaning materials and equipment.
2. Receiving all goods delivered, following standard procedure for completing goods received sheets.
3. Storing all stock items in appropriate manner.
4. Recording all issues accurately from the cellar and all other stores areas.
5. Maintaining the correct running of beer cellars, including cleaning pipes on weekly basis.
6. To assist in food and liquor stocktaking procedures.
7. Preparing and pricing orders for suppliers to be authorised by F&B Manager.
8. To be aware of the business within the Hotel by studying Contracts on weekly basis.
9. To maintain all areas within stores in a clean and hygienic manner.
10. To ensure the carpark is kept in a well maintained manner i.e.
- directional signs on roadways
- illuminations to be in correct working order
- all areas to be kept free of litter & cigarette ends
- rubbish bins to be emptied daily
- correct signage for pricing structure
- office to be in good repair
11. Effective training of car park staff to allow a polite and courteous service to be given to all guests.
12. To ensure all moneys are correctly posted on a daily basis.
13. To deal with any queries regarding car park charges/complaints.
14. To ensure maximum revenue is gained from the car park.
15. To be fully aware of your responsibilities under The Health and Safety at Work Act.
16. You may be required occasionally to visit other Thistle Hotels in Scotland to assist with matters regarding audits or stores departments of car park departments.
[13] Meantime, on 22 January 1999 the pursuer had been in touch with Mr Arkley in Leeds with a view to setting in operation the first stage of the company's grievance procedure, a matter which he confirmed in a letter of 22 January to Mrs Meldrum in which he also pointed out that in the absence of the job description and the other information which he sought he would not be in a position to comply with the deadline which she had set. It appears from a letter of 28 January 1999 written by Mr Arkley that he was unclear as to the nature of the pursuer's grievance. In his evidence the pursuer explained that he was unhappy about the manner in which his redundancy was being handled. In brief, he had not received communication from his superior, Mr Arkley. He was not being given proper information on other options such as early retirement or redundancy but was being pressed to accept the only post offered, of which full details had not been given but which, in light of such details as had been provided, he regarded as unsuitable.
[14] Having subsequently received the job description 7/25A, set out above, the pursuer consulted solicitors who, on 2 February 1999, wrote to Mrs Meldrum expressing the view that the ESM offer did not constitute suitable alternative employment and reporting that the pursuer did not
"consider that the proposed job remotely matches his current post in terms of his reporting position within the company, his skills and experience, his status and his responsibilities on his present post."
The solicitors also pointed out that they did not agree that the travelling requirements being imposed on the pursuer in the proposed new post were reasonable.
[15] In consequence, at least in part, of the pursuer's desire to pursue a grievance procedure a meeting was arranged to take place in Leeds on 17 February 1999. Prior to that meeting taking place one or more telephone conversations occurred between the pursuer and Mrs Meldrum. According to the pursuer he was told by Mrs Meldrum that in consequence of his solicitor's letter the ESM offer had been withdrawn; the defenders were looking for a more suitable post; and Mr Arkley was looking into a car parking managerial position but required first to speak to Mr Bould, the Chief Executive. Mrs Meldrum, in her evidence, strongly denied having told the pursuer either that the ESM offer was being withdrawn or that the company was looking into the possibility of a national car park management post. She deponed that it was the pursuer who had raised at the initial meeting in January the possibility of a post as national car park manager and in the telephone conversations she advised him that the meeting in Leeds would be his opportunity to present that proposal to his, and her, superiors.
[16] Despite what was said by counsel for the defenders in his closing submissions, I do not regard this conflict of evidence as being of much significance in relation to the real issues for my decision. It is possible that the pursuer misunderstood Mrs Meldrum but at all events I accept the pursuer's evidence of his understanding of what she was saying. That evidence is consistent with the terms of his contemporaneous letter to his solicitors (7/8 of process). According to Mr Godfrey's evidence, at the meeting in Leeds he understood Mr Arkley already to have spoken to the chief executive, Mr Bould, about the suggestion of a national car parking manager (to which Mr Bould's reaction had been that there was no scope within the company for such a post). Mrs Meldrum for her part kept no record of any telephone conversations. The issue of his future was a matter of direct and immediate concern to the pursuer, whereas it was simply part of Mrs Meldrum's work. I am therefore not persuaded that her recollection of matters and her evidence on this particular chapter is more accurate or reliable than that of the pursuer, whose evidence I prefer.
[17] The pursuer took with him to the meeting in Leeds, certain papers (including the documents now lodged as 6/18 - 6/22 of process inclusive) relating to advice he had given on other car parks within the defenders' undertaking and which he evidently thought would assist in relation to the suggestion of a post of national car parks manager as potentially suitable alternative employment. At that meeting the pursuer was told effectively that there was not and would not be such a post. In addition the ESM post was discussed. Not unsurprisingly, the accounts given by the pursuer and Mr Godfrey of the meeting in Leeds vary in detail and emphasis but for present purposes, apart from ruling out the creation of any post of national car park manager, the outcome of the meeting was broadly that the pursuer agreed to give the matter of the ESM post further consideration to the extent of indicating willingness to have a further meeting and discussion with Mr Hunt and, with a view to meeting some of the pursuer's objections, Mr Godfrey offered to alter the reporting line respecting the ESM post to include the ability to report directly to the operations director for Scotland. Following the meeting in Leeds, as an enclosure to a letter of 26 February 1999 (No. 7/11 of process), a new job description was provided to the pursuer. That new job description of the ESM is textually identical to the earlier job description with the single exception of the substitution of the words "operations director, Scotland/general manager" for the words "resident manager/general manager" which had appeared in the earlier document reproduced above as the persons to whom the employee would be responsible.
[18] A further meeting between the pursuer and Mr Hunt took place on 5 March 1999. According to the pursuer, Mr Hunt did give some further explanation of the job but was not able to show the pursuer the stores area, or the office accommodation which he would occupy, were he to accept the post. According to the pursuer, the reason for Mr Hunt's reluctance in this regard was that Mr Hunt did not wish the then current stores supervisor to know of the possibility of the pursuer's being appointed as ESM, since the supervisor's post would then become redundant. When he subsequently gave evidence Mr Hunt did not contradict that view of matters.
[19] It appears that during the discussions a question of a trial period had been raised. Following the meeting on 5 March 1999, as had been foreshadowed in a letter of 2 March 1999 from his solicitors, the pursuer wrote to the defenders on 10 March 1999 indicating a willingness to have a four week trial period in the proposed ESM post. Apparently after taking into account holiday arrangements, it was later understood that the pursuer would start in that post on that trial basis on 29 March 1999. On 12 March 1999 Mrs Meldrum addressed to the pursuer a letter (7/17 of process) in which, having referred to the starting date and the statutory trial period commencing on that day, she continued in the second paragraph by writing in these terms:
"I would confirm that the company regards the post of Essential Services Manager as suitable alternative employment. For the avoidance of doubt, if you leave during or at the end of the trial period, you will not be entitled to a redundancy payment if you are unreasonable the job (sic) of Essential Services Manager.
Perhaps you can confirm the above is in order.
I would also confirm that as at the 29 March 1999 your annual holiday entitlement is 26 days outstanding, and you have a further 6 public holidays due throughout the year.
I trust this clarifies the situation, and I look forward to seeing you in Glasgow following your holiday. I hope you have a relaxing one."
To that letter the pursuer replied by letter dated 19 March 1999 (7/16 of Process) in these terms:
"Dear Jan,
I refer to your letter which you must have meant to date 12/3/99. I am very surprised and disappointed by its terms and particularly by the contents of the second paragraph. As you know, I always have had very serious doubts about the new post of Essential Services Manager. I basically have never felt it was, or is, "suitable alternative employment" but after talking to Tim Hunt, I felt prepared to at least give it a try, subject to the four week trial period. Your letter however has really destroyed my trust in the Company as an employer, together with any goodwill which remained.
I now feel unable to try the job. Given the contents of Mr Godfrey's letter to me of 26 February 1999, I now regard myself as dismissed from the Company with effect from 14 March 1999 on the grounds of redundancy ..."
Although Mrs Meldrum replied, apologising for the omission of the words "in leaving" after the word "unreasonable" and inviting the pursuer to re-consider matters, the proposed trial period in the proposed ESM post never took place, the pursuer thereafter, through his solicitors, reiterating the view that the alternative employment as ESM was not suitable.
[20] Evidence was also led concerning what happened at the Glasgow Thistle Hotel following the pursuer's refusal of the post of ESM. It is apparent that after the pursuer's rejection of that post no relevant changes in the staff, or staffing structures, at the hotel occurred until the end of October 1999 when the stores supervisor, a Mrs Anderson, resigned. Her functions were thereafter carried out by Mrs Angela Ellis, who had started work at the hotel some three of four years previously as a chambermaid. In her evidence Mrs Ellis explained that after working as a chambermaid for some six months she had been promoted to a housekeeper and operated in that capacity for some two years or so until she took over the post of food and beverages stock controller, a post which involved counting the food and beverages in stock at fortnightly intervals, submitting details to head office and also involved the processing of invoices for payment. On taking on Mrs Anderson's duties of stores supervisor, Mrs Ellis was then given the new job title of "Essential Services Manager". In her evidence, Mrs Ellis confirmed in detail that all of the tasks described in headings 1-9 inclusive of the ESM job description contained in 7/25A, reproduced above (the non-carparking functions), were tasks which she performed after Mrs Anderson's departure and which had been performed by Mrs Anderson before her. The staff available to Mrs Ellis consisted of two young, "work experience", storemen and a girl to do some computer work. Much of Mrs Ellis' work involved physical tasks - she suggested sometimes as great at 90% - and included for example from time to time the actual cleaning of the beer pipes in the beer cellars if she were unable to find some member of the bar staff available to do that task. Her work also included tasks such as taking goods to the kitchen. Although Mrs Ellis took on the duties previously performed by Mrs Anderson, she did not assume any responsibilities for the car park in the hotel, which was then under the management of another department. Mrs Ellis reported to the resident manager of the hotel. In her post of ESM she was paid an annual salary of £11,500 and was not provided with a car.
[21] In the course of his submissions, Mr Napier, who appeared for the pursuer, referred me again to the report of the decision in Carron Co v Robertson 1967 S.C. 273 and the twofold nature of the test of suitability of the alternative proposed employment and the reasonableness of its refusal.
[22] Mr Napier's first submission was accordingly that the post of ESM offered to the pursuer was not suitable alternative employment. There were various grounds on which it was said not to be suitable.
[23] Among those grounds was the contention that the ESM post was a job of much lower status than the pursuer's former employment. Subsumed within that submission were a number of factors. First, as was evident from the job description and also from Mrs Ellis' evidence, a good proportion of the non-car parking element of the proposed alternative employment involved tasks such as stock-checking and the supervision of stores which were a significant change from the managerial status and function enjoyed by the pursuer at Greenside. The work involved physical tasks, as described by Mrs Ellis. The number of employees under the management of the pursuer would be much smaller than those subject to his management and supervision in his former post as car park manager. Since it was clear that were he to accept the offer made to him the intention was that the then current stores supervisor, Mrs Anderson, be made redundant the pursuer would effectively have but the two storemen and perhaps an assistant under his direction. Although the pursuer would retain his current responsibility for car parking at the Glasgow Thistle, that car park was small indeed compared with the Greenside Car Park. A significant key to the status of the job was given in the initial job description which provided for the holder's being responsible to the resident manager of the hotel - not to an operations director. The change effected in the second job description was essentially cosmetic. The true status of the job was indicated by what had happened afterwards and was further indicated retrospectively by the amount of the salary paid to Mrs Ellis as ESM which was significantly less than the salary paid to the pursuer as manager of the Greenside Car Park.
[24] For his part in the course of his submissions Mr Hanretty, who appeared for the defenders, stressed that while Mrs Ellis may have been given the job title of "Essential Services Manager", her job in that capacity should not be seen as equivalent to that which was offered to the pursuer. Mr Hanretty readily accepted that Mrs Ellis' evidence was to be regarded as reliable, subject to the qualification that she had exaggerated the physical component of the tasks which she performed. Counsel also submitted that it was wrong to say that the pursuer's job at the Greenside Car Park was wholly managerial, since the pursuer had accepted in his evidence that if need be, other staff being absent, he would indeed "roll up his sleeves" and man a ticket booth.
[25] However, the principal thrust of counsel's submissions in relation to the status issue was to stress the expression in the evidence for the defenders, principally from Mr Hunt, of the pursuer's being given a "troubleshooting role", that is to say his having been offered the task of dealing with the problems of "scams" in the stores department of the Glasgow Thistle hotel and engaging in similar investigative and control exercises in other hotels in the defenders' organisation within Scotland. In that respect, the offer to the pursuer was materially different from the post of essential services manager occupied by Mrs Ellis.
[26] In his evidence Mr Hunt did indeed stress his concern at the apparent lack of security within the stores at the Glasgow Thistle which had resulted in the thefts in December 1998; his intention that the pursuer should have a troubleshooting role by bringing greater discipline to the supervision of the stores; his intention that the pursuer should have some roving function of investigating similar problems should they emerge elsewhere in Scotland; all with the consequence that, put shortly, the ESM post was intended as a clear, managerial post.
[27] While Mr Hunt, in his evidence, sought to give the proposed ESM post that description, I have difficulty in accepting that description as wholly accurate.. While it is not disputed by the pursuer that in the course of the meetings on 18 January and 5 March Mr Hunt referred to the difficulties in the management of the stores of the Glasgow Thistle Hotel which had recently been experienced and while it is not in dispute that the pursuer had a reputation for thoroughness in his managerial skills and for his success in detecting the fraud previously detected in the car park of the Glasgow Thistle, I have reached the view that in his evidence Mr Hunt exaggerated the importance truly to be attached to the investigatory and managerial aspects of the proposed ESM post. In that regard it is to be noted that it was accepted by Mr Hunt in the course of his evidence that at both meetings he acknowledged an intention of making the then stores supervisor redundant. The evident problem confronting the hotel management in January 1999 lay with the unsatisfactory performance and qualities of the then supervisor and the pursuer concluded, in my view justifiably, that he would in due course be required to assume the day to day responsibility of a stores supervisor on its then occupant being made redundant. Next, it is to be observed that Mrs Ellis' evidence of the duties which she took on when the then stores supervisor, Mrs Anderson, departed matched exactly the non-car parking duties contained in the job description issued to the pursuer. As I have already recorded, except in so far as relating to her estimation of the percentage physical content of her work, counsel for the defenders did not dispute that Mrs Ellis was a reliable witness. It is therefore difficult to see why the pursuer should have construed differently the terms and implications of the job description issued to him. It is further to be noted that the terms of the job description issued to the pursuer give no real mention of the proposed post being one of audit, investigation or the general devising of systems of control and management. The only reference to auditing functions comes in the last paragraph which, for convenience, I repeat:
"You may be required occasionally to visit other Thistle Hotels in Scotland to assist with matters regarding audits of stores departments or car park departments".
[28] In relation to occasional visits to other hotels, as the pursuer himself pointed out, the defenders had normal audit teams to carry out such a function and the organisational respects in which the pursuer would be invited to conduct such a function were far from clear. In my view, had the post offered to the pursuer been truly a job whose principal function was an investigative or troubleshooting role it would have been natural to give that role primary prominence in the description of the job. The job description issued to the pursuer singularly fails to do that. It lists as the primary heads the functions which were being carried out by the then existing stores supervisor followed by a list of his existing car parking functions in relation to the Glasgow Thistle Hotel. In my opinion the pursuer was entitled to infer from the job description that any roving "troubleshooting" role was far from being his primary function. I also believe that the pursuer was sufficiently astute to detect that Mr Hunt's concerns relating to the security of the stores department in the Glasgow Thistle Hotel were more related to the quality of the performance of the then occupant of the stores supervisor post than to some functional or organisational deficiency. The defenders were aware that the pursuer, rightly, attached importance to having the offer made to him detailed in a particular job description and it will scarcely avail the defenders now to say, as did Mr Hunt in his evidence, that the whole terms of the job description were badly expressed. For these, among other reasons, I consider that the pursuer was justified in the misgivings which he expressed at the time regarding the status and suitability of this new proposed post.
[29] That apart, the contention that there had been perceived a need for structural re-organisation and appointment of some new "troubleshooting" managerial post above level of stores supervisor is, in my view, inconsistent with subsequent events. It is clear that on the pursuer's declining the post of ESM matters at Glasgow Thistle continued as before. No steps were taken to recruit an alternative candidate for the post. No one was engaged to perform a "troubleshooting role" in the stores department of the Glasgow Thistle. The only alteration occurred when the stores supervisor decided to leave in the autumn of 1999, and her post was then filled by Mrs Ellis.
[30] I would also observe that in so far as it was suggested that the post offered to the pursuer would be inserted above that of the stores supervisor, pending her contemplated redundancy, is somewhat difficult to see what significant managerial role might usefully be performed by the pursuer in supervising a stores supervisor who had in turn only two or three inferior employees.
[31] A further indicator of the status of a post is its position in the corporate organigramme. The initial ESM job description issued to the pursuer placed the jobholder's line of responsibility with the resident manager of the hotel in Glasgow. However as car park manager the pursuer had reported at a higher level in the company's organisation, namely to an operations director in the head office in Leeds. Although, following the Leeds meeting, the reporting line was altered I think there is force in Mr Napier's description of that alteration as being cosmetic. As the pursuer indicated in the course of his evidence, the natural level at which someone engaged in the running of the stores of a hotel should report would be to the hotel manager, not an operations director. It appeared to me that the essence of the pursuer's concern was that the tasks described in the job description naturally required a reporting line to the hotel manager and thus indicated the lower status involved, rather than that the job description contained an obvious structural or organigrammatical error in stipulating that the performer of such tasks would be responsible to the resident manager.
[32] In these circumstances, I am satisfied, that the proposed ESM post was one which, for the pursuer, involved a materially lower status.
[33] Counsel for the pursuer further submitted that the ESM position was unsuited to the pursuer by reason of its contents. The pursuer had no experience in most of the non-car parking functions of the proposed post. His earlier experience was in stocktaking for audit purposes, and for the previous seven years he had been engaged only in car parking matters. Mr Godfrey had stated in his evidence that the pursuer who apart from car parking, had always been based in head office, was not an hotelier.
[34] In my view the non-car parking duties of the ESM post did involve the pursuer doing work which he had not done previously. Counsel for the defenders sought to suggest that there was no real distinction between stocktaking and stock controlling but I am unable to accept that suggestion. There is, in my view, and as explained by the pursuer in his evidence, an important distinction between the recording for accounting purposes of the quantities of stocks held at a particular moment and the controlling and assessment of the appropriate amount of stocks which should be procured and held for the purposes of the functioning of an hotel. Even if not hộtelier functions in the strict manner in which Mr Godfrey sought to describe them, the tasks of deciding and controlling the appropriate levels of stock of food and beverages for the needs of the hotel, or the correct running of the beer cellars, or the appropriate manner of storing foods and beverages were nonetheless functions in the day to day running of an hotel, none of which had formed part of the pursuer's previous professional experience. It was not suggested to the pursuer that he would receive any structured or specific training in the matter, other than he might approach Mr Hunt for guidance.
[35] Counsel for the pursuer also submitted that the ESM job was not suitable because it involved a considerable amount of physical effort. As already mentioned, in her evidence Mrs Ellis indicated that when she became responsible for the management and supervision of the stores on her acquiring the ESM post she required to do a great deal of physical handling and moving of the stores and, on occasions, she was requiring to do the cleaning of the beer pipes herself. Although counsel for the defenders is in my view correct in describing Mrs Ellis' percentage estimation of the physical content of the job as exaggerated and although, as he pointed out, it is no doubt correct that on occasions the pursuer in his capacity as car park manager was prepared to do physical tasks and on occasion to man a booth, I am satisfied on the evidence that the proposed post, the offer of which was made in contemplation of the redundancy of the stores supervisor, would have involved the pursuer performing a greater amount of physical work than he had done previously in his career.
[36] A further component in Mr Napier's submission that the ESM post was unsuitable related to the hours of work and its location. To some extent the question of the hours of work also related to the loss of status.
[37] Adverting first to the hours of work, it is apparent from the evidence that while in charge of the Greenside Car Park, although assiduous and working at least a full working week, the pursuer, was to a considerable extent his "own boss" in the respect that he was not required to work to a fixed timetable. The ESM post, on the other hand, had precise time requirements, particularly his presence at 0800 hours each day, including Saturdays (although it was said by Mr Hunt that there would be the scope for derogation from the terms of the job description in that the requirement for Saturday attendance might be on alternative Saturdays).
[38] Secondly, in so far as location is concerned, while the pursuer had previously made a weekly visit to Glasgow - at his own choice of time - the alternative ESM post required his daily travel to and from Glasgow which, as he pointed out in his evidence, would effectively add some three hours to the time which he would be devoting daily to his employer's affairs. (His home in Edinburgh was relatively close to his work at the Greenside Car Park).
[39] In relation to these matters counsel for the defenders submitted that the need to be present at the workplace during specified hours was a feature of many responsible managerial positions. That is no doubt so. And taken on its own the alteration from the flexible regime at the car park to otherwise relatively fixed hours is perhaps not material. However, in my assessment of the pursuer's evidence he did perceive the move from the flexible hours which he enjoyed at the Greenside Car Park to the fixed hours at the proposed job in Glasgow as a reinforcement of the evident lower status of the latter post. I do not consider that it can be said that the pursuer was wholly unjustified in viewing the alteration of hours in that limited perspective. Beyond that however I do not consider that any significance is to be attached to the change in hours as indicative of the unsuitability of the offer of the ESM job.
[40] In so far as the location of the post, in Glasgow, is concerned it is clear that the need to travel daily between his home in Edinburgh and the hotel in Glasgow would add significantly to the time which the pursuer required to devote to work, rather than his private affairs. It was apparent from Mr Hunt's evidence that he had given this aspect little consideration and Mrs Meldrum was also somewhat dismissive of the matter.
[41] Counsel for the defenders submitted that it was common knowledge that many people commute between Edinburgh and Glasgow. The reality was, as he put it, that the M8 was very busy with such traffic. While it might not be to everyone's liking, it was not unreasonable to ask that an employee undertake such daily travel. The pursuer's alternative proposal of a post as national car park manager would have involved his travelling to locations all over the UK with overnight stays. For that reason, following the Leeds meeting, it had been concluded that the daily travelling was not a problem.
[42] I do not consider that such occasional travelling with possible overnight stays as was inherent in the suggestion of a post as national car parks manager is really to be equiparated with daily commuting. It is plain that the pursuer considered himself, not without some justification, to have some expertise in car park management and a certain enthusiasm for such work, and the greater status and responsibility in the national manager post which he envisaged could well offset such inconvenience as might be occasioned by the travelling which would be involved in that job. But in regard to the proposed ESM post which for the pursuer had no such plus points, daily travel along the M8 motorway falls to be viewed differently. I accept that, as Mr Hanretty pointed out, it is a fact that many people travel daily across the central belt between Scotland's chief cities and that elsewhere in the world people commute for considerable distances to and from work. However, commuting is not generally regarded as a joy. It was evident that the pursuer, particularly having regard to his age, identified the need to travel daily between Glasgow and Edinburgh as a further, material, negative factor; and in my view he was entitled so to view it.
[43] Indeed, looking to what was offered to the pursuer and comparing that with his previous post at the Greenside Car Park in terms of plus and minus, it is apparent that such a balance sheet records minus values in terms of status, content and location (daily travel time). The defenders do not demonstrate any other positive elements or values for incorporation in such a balance sheet. While both Mr Hunt and Mr Godfrey professed a desire on the company's part to retain the pursuer as a valued employee, it is of some significance that at no point was consideration given by the defenders to meeting the pursuer's concerns by an offer of an increased salary. It is further to be noted that the salary paid to Mrs Ellis as ESM (albeit that she did not have any responsibility for car parking within the Glasgow Thistle) was approximately 60% of that paid to the pursuer at the time of the cessation of his position as car park manager in the Greenside Car Park. The pursuer additionally had the use of a company car, which was not given to Mrs Ellis.
[44] I have accordingly reached the conclusion that when compared with the post which he held as car park manager at the Greenside Car Park, the ESM post offered to the pursuer was thus materially deficient as respects its status, content and location. As I have just indicated there are no counterpoising considerations.
[45] Neither counsel referred me to any judicial discussion of the concept of suitable alternative employment. There must, I think, be some broad equivalence in terms of salary, benefits, status, content and the like between the former post and the proposed. In the present case in view of the deficiencies which I have already discussed I have come to the conclusion that the offer of alternative employment in the ESM post at the Glasgow Thistle Hotel fell short of what was required to constitute suitable alternative employment.
[46] Having reached that conclusion the issue whether the pursuer unreasonably refused a suitable alternative employment is superseded but it may be appropriate for me shortly to say something respecting the submissions made concerning the pursuer's refusal of the ESM post on the assumption that the post had been suitable alternative employment.
[47] In his submissions to the effect that in declining the ESM post the pursuer had acted reasonably Mr Napier invoked various factors. Briefly, he adverted first to the pursuer's age and length of service as relevant in so far as the ESM post required new skills and flexibility; a significant degree of physical effort; and presented a requirement to spend approximately three hours daily driving to and from Glasgow. While I am in general agreement with Mr Napier's submission that all of these present greater demands on the pursuer than on a younger man at the outset of his career, they are matters which also bear on the suitability of the ESM post and I have taken them into account in reaching my conclusion that the ESM post was not suitable alternative employment.
[48] Secondly, counsel for the pursuer was critical of the manner in which the possible change in employment was handled by the defenders. The alternative job package was put together in haste. No proper approach to the pursuer was made by his superior, Mr Arkley, and indeed it was left to the pursuer to raise with Mrs Meldrum, in a meeting in the car park of the Barnton Hotel, the question of his future. From the outset the defenders were unwilling even to contemplate the possibility of the pursuer's being made redundant. The pursuer was pressed to make a decision within brief periods and without full and accurate information. There was never any true consultation with the pursuer. His concept of a national car park manager was never truly considered or evaluated, a decision having been taken by the defenders that the pursuer would have to accept the ESM job as the only post on offer.
[49] In light of the evidence I consider that counsel for the pursuer is not incorrect in describing the proposal for the ESM post as having been conceived in some haste and it is also apparent that there was, particularly initially, a desire to secure the pursuer's speedy acceptance, even in advance of providing a proper job description. It is also apparent, in my view, that the pursuer felt, if not hurt, a sense of being treated with insufficient consideration, given his lengthy successful years of service with the defenders and their corporate predecessors. Hence his invocation of the "grievance procedure". However, ultimately the defenders sought to meet those complaints and I do not consider that at the end of the day - on the assumption that the offer of the ESM post were an offer of truly suitable alternative employment - the pursuer's refusal of it could properly be said to be a reasonable refusal by virtue of the manner in which, put shortly, the issue had been handled.
[50] In so far as possibly touching on this issue it is appropriate that I give some expression to my views on the pursuer's ultimate refusal of the suggestion of a trial period. At one point in his submissions counsel for the defenders suggested that the pursuer's eventual expression of willingness to undergo a trial period in the ESM post testified to his acceptance of its suitability. I am unable to accept that submission. It would undermine the whole philosophy of the trial period were agreement to undergo such a trial period to be taken as evidence of acceptance of the suitability of the proposed post. That apart, the pursuer had all along made plain his view that the ESM post was not suitable alternative employment. Having said all of that, I have to record that I am unable to understand why the terms of Mrs Meldrum's letter of 12 March 1999 should have provoked the pursuer's response set out in his letter of 19 March 1999 whereby the pursuer withdrew his willingness to undergo a trial period on the assertion that he had lost confidence in the company. Nothing that the pursuer himself said in evidence assisted in removing my incomprehension as to why the particular terms of the letter - rather than the nature of the employment offered - should have provoked that response. However, at least at one point in the course of her oral testimony, Mrs Meldrum indicated that in the course of her telephone conversations with the pursuer she had sought to persuade the pursuer that the trial period was simply a process which he should go through as part of the procedures for obtaining his redundancy payment. It may possibly be that in light of that prior suggestion, and in view of his underlying belief that the ESM post was not suitable alternative employment, the pursuer simply revised his view and sought to attribute responsibility for that revision to the letter from Mrs Meldrum of 12 March 1999. Whether that speculation be correct or not, I am unable to categorise the pursuer's reversal of view on the matter of a trial period as being reasonable, were the offer of the ESM post to have been suitable alternative employment.
[51] Summarising matters, had I been persuaded of the view that the ESM job were indeed suitable alternative employment I would not have been disposed to find the pursuer's refusal of that offer to be reasonable on the grounds advanced by his counsel.
[52] There remains the dispute regarding the period of notice.
[53] It is accepted that the pursuer was entitled to twelve weeks' notice of termination of employment both under his contract of employment and under statute. It is also accepted that the defenders might make payment of remuneration in lieu of notice. The issue arises because, on 26 February 1999, following the Leeds meeting, the defenders gave the pursuer two weeks' notice of termination of employment to expire on 14 March 1999 (No. 7/11 of process). The letter giving that notice also stated that if the offer of alternative employment were refused the pursuer would be entitled to pay in lieu of the balance of the notice period. By letter of 5 March 1999 (No 7/14 of process) the defenders extended the period for acceptance of the offer of alternative employment to 12 March 1999. That process was then interrupted by the pursuer's intimation of his willingness to work in the ESM post or a four week trial period. As already explained that trial period did not take place because the pursuer withdrew his willingness to proceed with the probationary period. In the event on 31 March 1999 the defenders extended until 6 April 1999 the time for acceptance of the offer of alternative employment.
[54] Essentially, the submission for the pursuer appears to be that, having initially refused the offer of alternative employment and having been given two weeks' notice of the termination of his employment with the company on 14 March 1999 with an undertaking by the company to pay remuneration in lieu of notice for the remaining period (ten weeks) of the notice period, that giving of notice was somehow obliterated by the pursuer's subsequent indication of a willingness to undertake a trial period, in an alternative post, upon which expression of willingness he reneged. Having thus invited the consideration of a trial period and having thereafter gone back on that commitment, the proposition appears to be that the defenders were then required to give to the pursuer a further full twelve week period of notice.
[55] I am not minded to accept that submission. It appears to me that the proper analysis is that on the post becoming redundant, notice of termination of employment is not interrupted by the offer by the employer of alternative employment in a different post. Such an offer is not to be seen as continuing the previous employment, duly terminated, and thus giving rise to a new need to give fresh notice from a new starting date. I therefore regard the submissions made by counsel for the pursuer in support of his second conclusion to be misconceived.
[56] Accordingly in the result I consider that the pursuer is entitled to payment of his redundancy payment but not to the other sums sought under the terms of the second conclusion. I shall accordingly grant decree for payment of the contractual redundancy payment, the amount of which is agreed in terms of the joint minute between the parties. Counsel for the pursuer invited an award of interest on that sum from 4 April 1999 being the date upon which in his submission the pursuer's contract of employment terminated. Counsel for the defenders made no particular submissions on the question of the date from which interest should run. The conclusion of the summons, while invoking the date of 4 April 1999, nevertheless leaves it to the court's discretion as to the appropriate date. In my view there is no ground for departing from the normal rule in a contractual claim that interest should run from the date of citation. I shall accordingly award interest from the date of citation.
[57] I shall therefore uphold the pursuer's first plea-in-law and grant decree in terms of the sum set out in the first paragraph of the joint minute for the parties No. 21 of process, with interest thereon at the judicial rate from the date of citation. I shall assoilzie the defenders from the second conclusion of the action.