United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 949_94_1412

Appeal No. EAT/949/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 December 1994

HIS HONOUR JUDGE HULL QC

MR K M HACK JP

MRS P TURNER OBE

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WIGFALL GROUP PRACTICE LTD          APPELLANTS

A L ROBINSON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants (In Person)


 


JUDGE HULL QC: This is an Appeal to us by Wigfall Group Practice Ltd, a small firm of architects. The prime movers are apparently Mr & Mrs Wigfall. They are located in London SE1.

They had as one of their architects, Mr Robinson. He is a gentleman who is now aged 35. He was first employed by them on the 1st June 1989 and he stayed working with them until the 4th May 1993. His employment, as the Tribunal found, did not end then. Wigfall, if I may call them that, appeal to us against the Decision of the Industrial Tribunal sitting for London (South) under the Chairmanship of Miss Donnelly. She had of course two Industrial Members with her. They heard the case on the 7th April and 1st July 1994. It was an Application by Mr Robinson for a redundancy payment and he said that he had been unfairly dismissed.

What had happened, in a very short form, is this. The firm had been on hard times and so the employees, who included Mr Robinson, though he was a Director too, had their pay cut, on the basis that they would only be working part-time, or would only be profitably engaged part-time. Mr Robinson was paid three fifths of his agreed salary during this time.

Then by April or May of last year matters had got to a really desperate pass, and there were various suggested ways in which Mr Robinson could be dealt with. They were discussed with him. He could be made redundant then, and have whatever rights accrued after nearly four years employment. He could go on working on the basis that he might be paid. All those matters were discussed with him. Eventually there was an agreement between him and his employers. It is, in fact, recorded in a document which is with our papers, dated 4th May, page 25.

"In light of the changed economic circumstances confronting the practice as a result of the recession, the members, under joint discussion and agreement, ratify the following decisions which stem from the review of the Financial Statement dated 16 March and the Options Review of 20 April 1993."

He was to be paid, the Agreement says, something towards his salary for the calendar month of April, and the Agreement goes on:

"4. Tony will temporarily stop work today, 4 May, and register for unemployment benefit/income support.

7. Tony will rejoin the practice on full employment as soon as work is available. This will be on the same basis as at the time he left, as described in item 3 above [that is the three-fifths pay provision] He will be re-employed at three-fifths his June 1991 salary or greater if the financial circumstances of the practice at the time permit. Any alternative arrangement would be subject to future negotiation."

So that was what was agreed on the 4th May.

Mr Robinson started, of course, to look for work elsewhere. He was in a serious position, he had a young child and a wife who was expecting a child shortly, and he had to earn his living if he could.

He eventually complained to the Industrial Tribunal, still not being in work, on the 17th August. Since he said that his employment had ended on the 4th May, he was apparently out of time. However, when the Industrial Tribunal inquired into it, they came to the conclusion that the document I have read evidenced, not a dismissal or resignation, but a laying off within the terms of part 6 of the Employment Protection Consolidation Act. So that the reality of the situation, said the Tribunal, was that he was only laid off at that date, and of course thereafter remained laid off for a considerable period.

During that period, it was common ground that at the beginning of July some work did come in to the partnership, which in the view of Mr Wigfall should have been of interest to Mr Robinson. There was at least one telephone call between the men [I will go into this a little more fully in a moment]. Mr Wigfall took the view that Mr Robinson should accept this work. Mr Robinson declined to do so. As a result, there was a further letter written to which I should refer. That was dated 12th July and we find that at page 37 of our bundle. Mrs Wigfall wrote on behalf of the partnership:

"Confirming your telephone conversation with Geof on Saturday, we acknowledge with regret that you have decided not to take up the post of working on the German project, which is due to commence shortly. In the event, Geof has contacted Adam Firth, who has accepted the position. [that is another architect].

As soon as the volume of work increases such that we can support another person, we will be delighted to have you back, if your commitments permit your return at that time. We will keep in touch.

In the meantime, I am aware that I have not issued a P45 to you, given that your unemployment was temporary. I have, however, sent details to the Inland Revenue (see enclosed). Could you let me know whether you would like a P45 now?

Very best wishes to you all."

Now it was found that that letter was indeed a dismissal; that he was dismissed on that day. And that was the eventual finding of the Tribunal after, as I say, two days of inquiry, giving a fairly lengthy decision dealing with all aspects of it.

I refer now to their Decision. It was very important to consider what had happened shortly before the letter which led to that letter, because Mr Wigfall says that what happened was that Mr Robinson unreasonably refused the offer of employment on the German project. We must, therefore, refer to the Decision of the Tribunal.

They say:

"7. Then work was obtained by the Respondent. It appeared to be a small offer of work involving about 30 houses, but was possibly the beginning of a much larger project in Germany. Mr Wigfall thought that the contract was assured and telephoned the Applicant to ask him if he would like to return to work to be employed on the project. The two discussed the nature of the project, whether fees were assured and the Tribunal accepts the evidence of the Applicant that he was informed that it appeared initially to be a planning application. Mr Wigfall later explained that planning permission did not operate in Germany as it did in Britain and that it was more an application for building regulations approval. Mr Wigfall telephoned the Applicant on 9 July, but a major concern of the Applicant was whether it would provide only work for a few weeks and he would then be asked to step out again. He asked whether the Respondent could guarantee him six months work. The Respondent refused to offer such a guarantee. The Applicant also believed that he was being offered a return on 3/5ths pay, but that he would be expected to work a 5-day week. Mr Wigfall insisted that no such offer was made to the Applicant and that he was offered his full salary. Ms Knight [she was another architect] confirmed that when she returned from holiday she was paid her full salary for the job. It is unnecessary for the Tribunal to decide whether the Applicant was offered 3/5ths or 5/5ths pay; the Tribunal finds that he believed that his return to work would be on the same conditions as when he left,ie, 3/5ths pay. [that of course is what had been said in the Agreement in May] In view of the fact that the Applicant would have to work for a clear six months before he could invoke again his mortgage protection policy, the Applicant declined the work as unsuitable."

They say that following that conversation, there was the letter of 12th July which we have referred to. They say that there was a meeting. What was happening was that Mr Robinson had eventually succeeded in finding alternative work, which he was negotiating for; and he obtained work with another firm of architects. When Mr Wigfall and Mr Robinson met they apparently had a rather unsatisfactory discussion. Mr Wigfall, the Tribunal say, had an aggressive attitude.

"It is clear to the Tribunal, from Mr Wigfall's attitude throughout, that he was highly indignant that the Applicant had taken work elsewhere, and then claimed a redundancy payment."

So that was the factual background which the Industrial Tribunal found and they went on to say, amongst other things, after considering the possibility that this was a case under which redundancy pay could be claimed because of a mere laying off, that they had decided that that was not the true situation here, and that there was a dismissal. They say:

""...on reflection the Tribunal is satisfied that the effective date of termination was not the 4th or 8th August 1993, but 12th July. Its reason for this is that the lay-off was brought to an end on 9 July when Mr Wigfall telephoned the Applicant with his offer of work for the German contract. The Tribunal is satisfied that this was not an offer of suitable alternative work."

So they found that in fact the date of termination was the 12th July. They say the effect of the letter of the 12th July was to dismiss Mr Robinson.

So there it was. That was their finding on the facts. They found that the letter of 12th July was a dismissal, but of course they had to consider, under the Provisions of the Act, whether a suitable offer of employment had been made, because under Section 82 of the Employment Protection Act, 1978, if that had been made, it might lead to the disentitlement of the Applicant to a redundancy payment. That Act in Section 82 refers to an offer of suitable employment by the employe. It says:

"(5) If an employer makes an employee such an offer as is referred to ...

(a) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed, and as to the other terms and conditions of his employment, would not differ from the corresponding provisions of the previous contract; or

(b) [if they do differ] 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."

Now that was of course one of the matters which the Tribunal had to decide. They had to inquire carefully into what the offer was which was being made at the beginning of July.

They found that it was not suitable and that Mr Robinson acted reasonably in refusing to accept it in the circumstances, which they set out. That, on the face of it, it was a question for them. They looked at a number of documents of course. They had heard Mr Robinson and they had heard Mr Wigfall. They preferred, where there was any conflict of recollection between the two gentleman, the evidence of the Applicant. He had been dismissed. The reason for his dismissal was redundancy, the falling off in work. Therefore, they awarded him a comparatively modest redundancy payment, arising from his four years employment.

Mr Wigfall, in the Appeal to us is essentially saying, "That Decision of the Tribunal was contrary to the evidence". Amongst other things, he said, "I am dismayed to see that they do not refer to some documents which I put before them, in the sense of handing them to the clerk, at the outset of the second day of the hearing". And he refers to those documents. One of them, at least, is a letter dealing with this matter from Germany, from the developer or somebody else concerned with the development, a Mr Moser. He wrote to Mr Wigfall on the 9th July saying that it was a project which they hoped to complete by the end of the year. He said to us that they had surmounted what might be called the planning hurdles, in English law, although German law is not the same on this. They got zoning approval. So the project was an excellent one. He also wished to put before the Tribunal Mr Firth's history. [Mr Firth was an architect who was employed specially for this work] and to show how Mr Firth was employed, and how the project went on.

Those were matters that were not, in the strict sense, relevant unless the good faith of Mr Wigfall were called in question, which it was not. Mr Wigfall's understanding of the true nature of the project, and matters of that sort, were not directly material. What was material was the offer which was being made to Mr Robinson. Was it one which Mr Robinson should accept or not? The Tribunal said at paragraph 13:

"The Tribunal notes that although that work continued for 13 weeks, the German contract eventually did not come to fruition."

But that, again, is a matter which is only incidental and not strictly relevant. The question is, was the offer which was being made one which Mr Robinson should have accepted? There were only two people who could speak to that, so far as it was a matter for them, those were Mr Wigfall and Mr Robinson. The Tribunal then had to say what it made of the evidence. It is true they do not refer to the additional documents. It appears to us that it would be unlikely that they would refer, in their Decision, to these further documents which were laid before them, because they are so marginal to their Decision.

We cannot believe that documents which were handed to the clerk, to be shown to the Tribunal, were not shown to the Tribunal. A further comment is that Mr Wigfall did not find it necessary, in giving his evidence and justifying his position to the Tribunal, ever expressly to refer to these documents. Mr Wigfall says that he is not happy that those documents were not referred to. All we can say is that we are most certainly not satisfied that anything went wrong; that those documents were not put before the Tribunal; or that they failed to consider them with the other evidence in the case.

Mr Wigfall's complaint, as I say, is that this Decision was one which was contrary to the evidence. Having read the Decision of the Tribunal, we can only say that there was quite obviously evidence on which the Tribunal was entitled to reach their Decision.

As to the weight to be attached to the evidence, which evidence to regard as most material, which witnesses to prefer, those were entirely questions for the Tribunal and not for us. We are only concerned if there has been a error of law. Having read the very full and thorough Notice of Appeal and the Skeleton Argument which has been put before us, and heard Mr Wigfall explain matters to us, we are not satisfied that there is any error of law which is fairly arguable in this decision of the Tribunal. We think that they were entitled, as a matter of law, to reach the Decision they did and the question whether another Tribunal, or we ourselves, if we were trying the case, would have reached a different conclusion, is entirely beside the point.

In those circumstances, we have to dismiss the Appeal at this stage, rather than allowing it to go to all the expense and waste of time which would be involved in a Full Hearing. So we dismiss the Appeal now.