United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS NAOMI CUNNINGHAM (of Counsel) Instructed by: Free Representation Unit Peer House 4th Floor 8-14 Verulam Street London WC1X 8LZ
For the Respondent	MR STEPHEN ISAACS (Managing Director) George Harrison Limited Selsdon House 212-220 Addington Road South Croydon Surrey CR2 8LD


 


HIS HONOUR JUDGE PETER CLARK

1. This is an appeal by Mrs Hudson, one of three Applicants before the London (South) Employment Tribunal, chaired by Mr David N Milton, against that Employment Tribunal's decision, promulgated with Extended Reasons on 18 March 2002, dismissing her claim for a statutory redundancy payment brought against her former employer, the Respondent George Harrison Ltd.
2. The Appellant lives in Wallington, Surrey. In September 1996 she took employment with the Respondent, whose premises were then at 3 Butter Hill, Carshalton, within walking distance of her home. During summer 2001 the Respondent took a business decision to move their operations to premises in Addington Road, South Croydon. The Appellant was offered her old job on the same terms at the new premises. That was an offer of suitable alternative employment, the parties agreed. However she refused to move to Croydon. Her reasons for that refusal are set out at paragraph 21 of the Employment Tribunal's reasons thus:

21 "Mrs Hudson's case was that she had always lived and worked locally in Carshalton. She knew and regularly shopped at her local shops during her lunch hour. She walked to work. She could go home at lunch time if she wished. In the past she had enjoyed going swimming during her lunch break or alternatively on her way home from work. She had chosen to work at the Respondent Organisation because it was local to her home. She claimed therefore that she was reasonably entitled to reject the position of her old job in the new location in South Croydon."

3. It was common ground that the Respondent had offered free transport to the Applicant for her new journey to work. She believed that would mean leaving home at 8.00 p.m. in order to arrive for a 9.00 a.m. start to her working day.
4. Section 141 (2) of the Employment Rights Act 1996 excludes an employee's right to a redundancy payment where the employee unreasonably refuses an offer of suitable alternative employment.
5. The Employment Tribunal found that this Appellant's refusal of alternative employment, accepted as suitable, was unreasonable for the following reasons:

24 "In the case of Mrs Hudson we found that it was a genuine and helpful offer made by the Respondents to provide the means of her travel to and from work. She would thus not have the expense or stress of the actual driving process. We are also very familiar with travelling in the Croydon area and we find that she was not entitled to believe that she should allow "an hour" for the journey. Of course on the odd day with a car crash or something of that kind there might be a very slow journey. Our conclusion is that she was not entitled to believe that her regular rush hour journey would be more than 45 minutes and it could often be less. We do not accept that that was in comparison to her full-time employment an unreasonable increase in her working day. We therefore find that she was indeed unreasonable within the meaning of the sub-section to refuse the offer of relocated employment."

6. In this appeal Ms Cunningham takes broadly two points, set out in the amended grounds of appeal following a Preliminary Hearing at which the appeal was permitted to proceed to this full hearing. It is convenient to take those points in reverse order.

Unreasonable Refusal

7. Ms Cunningham takes the point that in deciding whether a refusal is unreasonable for the purpose of section 141 (2) of the Employment Rights Act 1996 the Employment Tribunal ought to apply the "range of reasonable responses" test, recently affirmed by the Court of Appeal in Foley v Post Office [2000] ICR 1283 and, we think, by the House of Lords refusal of an application for permission to appeal in Beedell v West Ferry Printers Ltd [2001] ICR 965D, when considering the question raised by section 98 (4) of the ERA, that is "whether in the circumstances…the employer has acted reasonably or unreasonably in treating [the reason for the dismissal] as a sufficient reason for dismissing the employee."
8. Ms Cunningham argues that the word "unreasonably" must have the same meaning in both provisions of the same statute, thus the range of reasonable responses test applies to the question raised by section 141 (2). That construction was apparently rejected by the Tribunal below in relation to this Appellant's case (reasons, paragraph 23), although it appears to have been employed in the case of another Applicant, Mrs Rochford, at paragraph 30.
9. We are not persuaded that this is a necessary or indeed helpful gloss on the words of section 141 (2). It seems to us that the questions are quite different; the section 98 (4) question looks at the reasonableness of the employer's decision to dismiss; that does not involve an enquiry into the employer's personal circumstances. It is a wholly objective question, decided by reference to the actions of a range of reasonable employers, some of whom would dismiss on the facts of the case, others who would not. The section 141 (2) question involves taking into account the personal circumstances of the employee. The test is not wholly subjective, but it includes taking into account those personal circumstances.
10. In short, we can do no better than repeat the words of Phillips J in Executors of Everest v Cox [1980] ICR 415, a case involving the same question in the present case, namely whether the employee had unreasonably refused an offer of suitable alternative employment in a redundancy case. At paragraph 418 C-D he said this:

"The employee's behaviour and conduct must be judged, looking at it from her point of view, on the basis of the facts as they appeared, or ought reasonably to have appeared, to her at the time the decision had to be made."

11. Neither Ms Cunningham nor Mr Isaacs, appearing before us today, quarrel with that test formulated by Phillips J. We respectfully adopt and endorse it. It envisages judging the employee's decision from her point of view, but subject to the state of affairs being not only as they appeared to her, but as they ought reasonably to have appeared. We think that that approach is not inconsistent with that of the Court of Appeal in the recent case of Wilding v British Telecommunications Plc [2002] IRLR 524, a case in which the question of whether the employee had failed to mitigate his loss by unreasonably refusing an offer of alternative employment made by his employer who had dismissed him in circumstances amounting to unlawful discrimination contrary to the Disability Discrimination Act 1995, arose.
12. For completeness we should add, based on well-established authority, that the burden of showing an unreasonable refusal in this case lies on the employer. Jones v Aston Cabinet Co. Ltd [1973] ICR 292.

The Relevant Circumstances

13. It is here that we think Ms Cunningham's point is correct. At paragraph 21 of their reasons the Employment Tribunal set out the Applicant's case. It goes beyond the mere increased travel to work time; it includes those personal circumstances outlined at paragraph 21. However, when the Employment Tribunal came to express their conclusions at paragraph 24 of the reasons they focused solely on the travel to work time and the provision of free transport by the employer. We do not accept Ms Cunningham's submission that the Employment Tribunal substituted their views for that of the Applicant; what we do accept is that in limiting their enquiry in this way they excluded factors relevant to the Appellant's personal circumstances which were not, as Mr Isaacs concedes, irrelevant. In our judgment failure to take those factors into account in reaching their conclusion amounted to an error of law.
14. On this basis we shall allow the appeal and remit the question of unreasonable refusal only to a fresh Tribunal for reconsideration. It will be for the next Tribunal to consider all the circumstances, including the facts as they appeared, or ought reasonably to have appeared to the Appellant, at the time of her decision not to move to the Respondent's new premises. That will involve a consideration of both parties' cases; the Appellant's view of her personal circumstances and the Respondent's case as to the position as it ought reasonably to have appeared to her.
15. For completeness we should finally say that we have derived no assistance from considering, as Ms Cunningham has invited us to do, the Employment Tribunal's approach to the case of the co-Applicant, Mrs Rochford, who has not chosen to appeal against the Employment Tribunal's decision, unfavourable to her on this issue of unreasonable refusal.