United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/1981/523_80_1610.html
Cite as: [1981] IRLR 477, [1981] UKEAT 523_80_1610

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JISCBAILII_CASE_EMPLOYMENT

		BAILII case number: [1981] UKEAT 523_80_1610
		Appeal No. UKEAT/523/80

EMPLOYMENT APPEAL TRIBUNAL

	At the Tribunal
	On 21 July 1981
	Judgment delivered on 16 October 1981

Before

The Hon. Mr. Justice Browne-Wilkinson (P)
Mr. W. P. Blair, QBE
Mr. R. V. Cooper

JONES APPELLANT

ASSOCIATED TUNNELLING CO. LTD RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant	MR. P. HUGHES instructed by Messrs. Kenneth Wainwright & Co., 17 Regent Road, Hanley, Stoke-on-Trent.
For the Respondent	MR. D. STOCKDALE instructed by Mr. T. Unsworth, P.O. Box 5, 20a Station Road, Urmston, Manchester M3 1LP.

MR. JUSTICE BROWNE-WILKINSON: Mr. Jones was employed by Associated Tunnelling Co. Ltd. ("the employers") from 12th December 1961 until 7th March 1980: he worked as a tunneller. The employers carry on business as contractors and for many years part of their work consisted of carrying out contracts at collieries belonging to the National Coal Board doing specialist tunnelling and bunkering work.

From 1969 to the date of his dismissal, Mr. Jones was working for the employers at Hem Heath Colliery, Stoke-on-Trent. The policy of the National Union of Mineworkers has been to discourage the National Coal Board from using independent contractors in their collieries. The employers' contract with the National Coal Board at Hem Heath Colliery came to an end in March 1980. The employers told Mr. Jones that they had work available for him to do on the construction of a bunker at Florence Colliery, Stoke-on-Trent. The Florence Colliery was very close to the Hem Heath Colliery and equally accessible to Mr. Jones's home. Instead of accepting this work, Mr. Jones obtained employment with the National Coal Board at the Hem Heath Colliery. Mr. Jones then claimed a redundancy payment from the employers.

In order to establish such a claim, Mr. Jones first has to show that he was dismissed by the employers: Employment Protection (Consolidation) Act 1978, Section 81. His case is that he was constructively dismissed, the employers having fundamentally breached the contract of employment in two respects: first, in requiring him to work other than at Hem Heath Colliery; secondly, in requiring him to do bunkering work whereas under his contract he was employed only to do tunnelling work. The employers deny any breach of contract, alleging that under the contract of employment they were entitled to require him to change his place of work and that there was no material distinction between tunnelling and bunkering work. Alternatively, the employers allege that the offer of work at Florence Colliery was an offer of suitable alternative employment which Mr. Jones had unreasonably refused: see Section 82 of the Act of 1978.

The industrial tribunal held that the employers were entitled under the contract to require Mr. Jones to work at the Florence Colliery and to do bunkering work. The industrial tribunal accordingly held that there was no breach of contract and no constructive dismissal: as a result Mr. Jones's claim for a redundancy payment failed. The industrial tribunal held that, if they were wrong in so deciding, Mr. Jones would not have unreasonably refused alternative employment at Florence Colliery. Mr. Jones appeals against the finding that there was no constructive dismissal. The employers cross-appeal against the finding that the refusal of suitable alternative employment by Mr. Jones was reasonable.

Two issues therefore arise on the appeal. The first ("the mobility issue") is whether under the terms of Mr. Jones's contract of employment the employers were entitled to require him to work other than at Hem Heath Colliery. The second issue ("the work issue") is whether under the terms of contract the employers could require Mr. Jones to do bunkering work as opposed to tunnelling. Accordingly the fundamental question is "What were the terms of the contract of employment?"

As we have said, the employers are in business as contractors. Amongst other things they entered into contracts with the National Coal Board to carry out certain works at various collieries, the duration of each contract varying from six months to five years. When one contract came to an end, it might or might not be replaced by another contract to be carried out at the same colliery. The evidence in this case was that the employers had been continuously employed under various contracts for upwards of 20 years at Hem Heath Colliery.

Mr. Jones lives at Chell Heath, Staffordshire. He was first employed on 12th December 1964 working on a contract at Chatterley Whitfield Colliery, which was about two miles from his home. When he was first employed, he was not told that he might be required to work at a different place. He had no written contract, but on 24th December 1964 he was sent a statement of the terms and particulars of his employment ("A3") as required by the statutory predecessor of Section 1 of the Act of 1978. Document A3 is silent both as to the nature of the work and the place at which it is to be done, save that there is written on it in manuscript the word "Chatterley".

In 1969, Mr. Jones ceased working at Chatterley Whitfield Colliery and started to work at Hem Heath Colliery, which is some 12 to 13 miles from his home. There was no evidence either that he was ordered to move to Hem Heath Colliery or that he objected to being so moved.

On 8th October 1973, Mr. Jones was issued with a fresh statement as to the terms and conditions of his employment ("A4"). In the document A4 there appear the words "Occupation Tunneller". A4, as originally typed, also included the words "74 hours per shift. At Hem Heath Colliery or such place or places in the UK the employers may decide from time to time." There are manuscript alterations to the figures "74" and the letters "UK" are struck out. In the margin opposite these alterations are the initials "N.S." Those are the initials of Mr. Jones's immediate superior, Mr. Savchenko. There was a conflict of evidence whether Mr. Jones had objected to Mr. Savchenko about the inclusion of the mobility provision in A4 and as to whether Mr. Savchenko had made the manuscript alteration. In supplemental findings, the industrial tribunal found that Mr. Jones had not made any objection to the mobility clause either to Mr. Savchenko or to anyone else nor had Mr. Savchenko initialed the alteration. The industrial tribunal found that at the time there were "grumbles" amongst the employees, but their complaint was about the possibility of transfer anywhere in the United Kingdom and not about the possibility of being transferred within the North Staffordshire coalfield area.

On 29th April 1976, Mr. Jones was issued with a further statement of terms and conditions ("A5"). This statement makes no reference to the nature of the work but contains a clause in the following terms:

"You may be required to transfer from one site to another on the instruction of the Employer."

The industrial tribunal found that Mr. Jones made no complaint to management about this provision. A5 had at its foot a typed receipt on which Mr. Jones, if he had signed it, would have acknowledged "receipt of the Statement of Particulars containing the terms and conditions of my employment". He did not sign it.

Finally there is a document ("A2/A6"). The industrial tribunal was unable to decide whether A2/A6 had been issued to Mr. Jones at all and, if so, whether before or after A5. It is a standard printed form. The only copy in evidence is a blank copy and does not contain Mr. Jones's name. It contains a clause as follows:

"You may be required to transfer from one work place to another on the instructions of Employer in accordance with the provisions of the appropriate Working Rule Agreement referred to above."

There is no "Working Rule Agreement" referred to elsewhere in the document.

We will deal first with the mobility issue. In a very elaborate set of reasons, the industrial tribunal dealt with the case on six alternative hypothetical bases, containing all possible permutations given two uncertainties, viz. (i) was there originally an implied term that Mr. Jones's place of work could be changed and (ii) was document A2/A6 issued at all and, if so, was it before or after A5? We have not found it necessary ourselves to deal with the case on this basis-. We hope we do not therefore do any great injustice to the close reasoning of the industrial tribunal by summarising the grounds of their decision shortly. They did not find it necessary to decide whether, before any of the documents was issued to Mr. Jones, there was an implied term as to mobility in the original contract of employment. However, they did say that if they had found it necessary so to decide they would have held that from the outset there was an implied term that Mr. Jones would work in the North Staffordshire area within reasonable commuting distance from his home. The industrial tribunal did not find it necessary to decide whether there was or was not such an implied term because they held that Mr. Jones having continued without objection to work for many years after the receipt of documents A4 and A5 (both of which stated that he could be transferred to a different work place) must be, taken to have assented to a variation of his contract in the terms of A4 and A5. As to A2/A6, the industrial tribunal treated the mobility clause as being wholly ineffective first because it had not been proved to have been issued and secondly because (its meaning being obscure) it could not have altered the contractual position.

We prefer to approach the case by considering first whether, as a matter of law, during the period from 12th December 1964 down to the date of the issue of A4 on 8th October 1973 there was any and, if so what, term to be implied in the contract giving the employers the power to alter Mr. Jones's place of work from one colliery to another. Apart from the point we will consider in a moment, we have no doubt that it is right to imply into the contract a term to the effect suggested by the industrial tribunal, i.e., a right to transfer to any site within daily commuting reach of Mr. Jones's home.

The starting point must ,be, that a contract of employment cannot simply be silent on the place of work: if there is no express term, there must be either some rule of law that in all contracts of employment the employer is (or alternatively is not) entitled to transfer the employee from his original place of work or some term regulating the matter must be implied into each contract. We know of no rule of law laying down the position in relation to all contracts of employment, nor do we think it either desirable or possible to lay down a single rule. It is impossible to conceive of any fixed rule which will be equally appropriate to the case of, say, an employee of a touring repertory theatre and the librarian of the British Museum. Therefore, the position must be regulated by the express or implied agreement of the parties in each case. In order to give the contract business efficacy, it is necessary to imply some term into each contract of employment.

The term to be implied must depend on the circumstances of each case. The authorities show that it may be relevant to consider the nature of the employer's business, whether or not the employee has in fact been moved during the employment, what the employee was told when he was employed, and whether there is any provision made to cover the employee's expenses when working away from daily reach of his home. These are only examples; all the circumstances of each case have to be considered: see O'Brien v. Associated Fire Alarms [1969] 1 All ER 93; Stevenson v. Teesside Bridge and Engineering Ltd. [1971] 1 All ER 296; Times Newspapers v. Bartlett [1976] 11 ITR 106.

Looking at the circumstances of this case, what would the parties have said had an officious bystander asked them "At what sites can Mr. Jones be asked to work?" The employers might have replied "Anywhere in the United Kingdom." But the industrial tribunal's findings indicate that Mr. Jones, as one-would expect, would have objected to being transferred anywhere outside daily reach of his home. The employers were in business as contractors working at different sites; so the parties must have envisaged a degree of mobility. In 1969, Mr. Jones himself was moved from his original place of work to Hem Heath Colliery without objection. All the statements of terms and conditions subsequently issued contain mobility clauses, albeit in varying terms. From these factors we think that the plain inference is that the employers were to have some power to move Mr. Jones's place of work and that the reasonable term to imply (as the lowest common denominator of what the parties would have agreed if asked) is a power to direct Mr. Jones to work at any place within reasonable daily reach of Mr. Jones's home. Such a term would permit Mr. Jones to be required to work at Florence Colliery.

This approach, however, is challenged by Mr. Hughes on behalf of Mr. Jones. He submits that in order to imply a term, it is not enough to say that some term has to be implied and for the court then to imply a reasonable term. He submits that before any term can be implied it is necessary to show precisely what term the parties (if asked) would have said was obvious. In this case, as in all contracts of employment, it is impossible to state with certainty what the term as to mobility would have been. It might have been the term that the industrial tribunal suggested: but it might also have been mobility within a defined area or within a given radius of Mr. Jones's home. Therefore, says Mr. Hughes, it is not possible to imply any term since one cannot be certain what that term should be.

The foundation for this submission is the decision of the House of Lords in Trollope and Colls Ltd. v. North Western Metropolitan Regional Hospital Board [1973] 2 All ER 260. In that case, a building contract provided for the work to be done in three phases. There was a fixed date for completion of Phase 1 but the architect was given power to extend that date and in fact did so. Phase 3 was to commence six months after practical completion of Phase 1. The contract provided that Phase 3 was to be completed by a date specified in the contract, there being no express power to extend the date for completion of Phase 3- It was argued that there ought to be implied into the contract a term extending the date for completion of Phase 3 if, as happened, the date for completion of Phase 1 was extended by the architect. The House of Lords held that no term could be implied, reversing the Court of Appeal decision that a reasonable term could be implied. The majority of the House of Lords gave two reasons for their decision: the first, that as the contract dealt unambiguously with the date for completion there was no room for any implication; the second (being the one directly in point in this case) that as any one of a number of possible terms might have been agreed by the parties to cover the position if they had directed their mind to the problem, it was not possible to imply any term: see Lord Pearson at pages 268-9; Lord Cross at page 272.

In our judgment, that decision is distinguishable from the present case. In that case, there was no need to imply any term: the express terms of the contract were unambiguous and covered the event which had happened, albeit in a way which was surprising in its result. Therefore any term which was to be implied would be varying the unambiguous express terms of the contract. In the case of contracts of employment containing no mobility clause, the position is quite different. As we have sought to show, it is essential to imply some term into the contract- in order to give the contract business efficacy: there must be some term laying down the place of work. In such a case, it seems to us that there is no alternative but for the tribunal or court to imply a term which the parties, if reasonable, would probably have agreed if they had directed their minds to the problem. Such a term will not vary the express contractual terms. This view is supported by the very many cases in which the courts have decided what term as to mobility ought to be included in a contract of employment: .see for example the cases cited above. If Mr. Hughes's submission were correct, all those cases would have been wrongly decided since it is never possible to state with certainty exactly what the parties would have agreed as to mobility if they had directed their minds to the question.

We therefore reach the conclusion that we are entitled to hold, and do hold, that the right term to imply into Mr. Jones's contract from the outset was that he could be required to work at any place within reasonable daily commuting distance from his home. If we are right on this, none of the later documents (with the possible exception of A2/A6) can have affected the position, since A3 is silent on the point and A4 and A5 both contain terms as to mobility wider than that implied term. It was submitted that if A2/A6 was the last contractual document, the mobility clause in A2/A6 is void for uncertainty and therefore the employers would not be able to show that they had any power to move Mr. Jones's place of work. There are many possible answers to this submission, but in our view the decisive one is that adopted by the industrial tribunal, namely that it was unable to find that A2/A6 had been issued to Mr. Jones at all. Unless and until it is proved that A2/A6 had been issued, its terms cannot affect the position between the parties.

It is therefore not necessary for us to reach any concluded view as to whether the industrial tribunal was right in holding that, even if under the original contract Mr. Jones's place of work could not be changed, by continuing to work without objection Mr. Jones must be taken to have assented to a variation in his terms of employment including the introduction of the mobility clause. However, since the case may go further and the Court of Appeal may take a different view on the implied term, we must state our reservations about the industrial tribunal's view on such variations. The statutory "statement of terms and conditions of employment" is not itself a contract but merely contains the employer's statement of what has previously been agreed. As such, the first of such statements to be issued is often compelling evidence of what terms have in fact been agreed. But where there are two or more statements which are not in identical terms, the later statement can only be evidence of an agreed variation of the original terms. Such variation may be either express or implied. If, as in the present case, there is no evidence of any oral discussion varying the original terms, the fact that a statement of terms and conditions containing different terms has been issued cannot be compelling evidence of an express oral variation. The most that can be said is that by continuing to work without objection after receiving such further statement, the employee may have impliedly agreed to the variation recorded in the second statement or is estopped from denying it.

In our view, to imply an agreement to vary or to raise an estoppel against the employee on the grounds that he has not objected to a false record by the employers of the terms actually agreed is a course which should be adopted with great caution. If the variation relates to a matter which has immediate practical application (e.g., the rate of pay) and the employee continues to work without objection after effect has been given to the variation (e.g., his pay packet has been reduced) then obviously he may well be taken to have impliedly agreed. But where, as in the present case, the variation has no immediate practical effect the position is not the same. It is the view of both members of this Tribunal with experience in industrial relations (with which the Chairman, without such experience, agrees) that it is asking too much of the ordinary employee to require him either to object to an erroneous statement of his terms of employment having no immediate practical impact on him or be taken to have assented to the variation. So to hold would involve an unrealistic view of the inclination and ability of the ordinary employee to read and fully understand such statements. Even if he does read the statement and can understand it, it would be unrealistic of the law to require him to risk a confrontation with his employer on a matter which has no immediate practical impact on the employee. For those reasons, as at present advised, we would not be inclined to imply any assent to a variation from mere failure by the employee to object to the unilateral alteration by the employer of the terms of employment contained in a statutory statement.