Appeal No. EAT/287/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 16 May 1994

	Before

	HIS HONOUR JUDGE J PEPPITT QC

	MRS E HART

	MR A D SCOTT

KENTISH BUS & COACH COMPANY LTD	APPELLANTS

MR A D QUARRY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR P CAPE
(OF COUNSEL)
Robert Muckle
Norham House
12 New Bridge Street West
Newcastle upon Tyne,
NE1 8AS

For the Respondent	MR J McMULLEN
(QUEENS COUNSEL)
Messrs Pattinson & Brewer
30 Great James Street
London WC1N 3HA

	JUDGE PEPPITT QC:  This is an appeal from the Ashford, Kent Industrial Tribunal sent to the parties on 2 March 1992.  The Tribunal held that the Respondent before us had been dismissed for redundancy and awarded him a redundancy payment in the sum of £852.  The Appellant employers appeal against that finding on the grounds firstly that the Tribunal, in arriving at its decision, misapplied subsection 2 of section 81 of the Employment Protection (Consolidation) Act 1978, or alternatively was perverse and secondly, failed to consider or misapplied section 84 of the Act.

	The Respondent had been employed by the Appellants as a bus driver since May 1988.  Initially his place of work was Victoria, which was convenient for him because his home was in Battersea.  Some time after the employment started the Appellants' Victoria depot closed and they transferred their operation to a new depot at Southwark.  Southwark thereupon became the Respondent's place of employment because although there was no mobility clause in his contract, he did not demur at the change because Southwark was only marginally less convenient for him than Victoria.  But in the autumn of 1990 the Appellants decided to close their Southwark depot.  At that stage their intention was to renew their operation in Southwark "in the very near future", albeit on a different site.  

	Southwark seems to have closed at the end of 1990.  The Respondent at that time was due 6 weeks holiday and it was hoped that the new depot in Southwark would be re-opened by the time of his return, but it was not.  By the time that the Respondent returned to work in early February it had been necessary to postpone the Appellants' plans to restart business in Southwark and accordingly the Respondent was required to work at one or other of the Appellants' four depots.  The only two candidates were Dartford and Leyton.  The Respondent tried Dartford for a short period and found it was too far and the travelling too difficult to enable him to continue.  The Appellants thereupon suggested Leyton.  They proposed that the Respondent would catch the 8.45 am bus from London Bridge which would get him to the Leyton depot in time for a 9.30 am start and that he could catch the 4.30 pm return bus from Leyton to London Bridge after his day's work.  As the Tribunal found, the applicant was prepared to give this arrangement a trial.

	The Respondent worked at Leyton from February 1991.  On 2 April he refused to undertake a shift at Leyton which would not have finished until 7 pm, some 21/2 hours after the time at which, by the arrangement his employers had suggested, his day's work would end.  The matter was considered by the Appellants who appointed a meeting on 1 May 1991 at which the matter could be discussed.  The Tribunal dealt with the meeting and its consequences in paragraph 10 of the decision which we should read in full:

"A meeting was accordingly held on Wednesday 1 May 1991 which was attended by the applicant and Mr Windget and, on behalf of the respondents, by a Mr Weatherley and a Mr Jeffery.  At that meeting the applicant was given a rota duty commencing at 9.00 a.m. at the Leyton depot (instead of commencing at 9.30 a.m. which he had previously been working) and ending at 3.45 p.m.  His workplace was to be Leyton.  He was given until 14 May to think it over.  The applicant thought it over and decided that the travelling to Leyton and back from his home in Battersea (however helpful the respondents may have been in suggesting various alternative routes) was too much for him since it involved a journey in each direction of approximately 11/2 hours.  At the meeting called for 14 May to discuss disciplinary action, the applicant was dismissed for "failing to comply with a reasonable order given to him by the respondents".

	The Tribunal found that the Respondent's refusal to work under the new arrangement at Leyton was reasonable.  In paragraph 15 of their decision they said:

"We are satisfied on the evidence that if the applicant were required to travel from Battersea to Leyton on a daily basis, it would add something like 3 hours per day onto his existing contract to work 71/2 hours a day, and having regard to the applicant's age and the length of journey in which he would have become involved, we do not think that the alternative employment was suitable to this employee and we think that his refusal of that alternative employment was reasonable."

It was against this background that the Tribunal found that the Respondent had been dismissed for redundancy on 15 May.

	The first of the two attacks which Mr Cape launches against the Tribunal's decision is in relation to the finding that the respondent was dismissed in a redundancy decision.  The Tribunal dealt with it in paragraphs 12 and 13 of their decision.  In paragraph 12 the Tribunal asked itself the question "What was the real reason for the Respondent's dismissal?".  They answered that question in paragraph 13:

"There is no doubt whatsoever in the minds of the Tribunal that once the respondents moved the place of employment of the applicant to another site altogether, that operated under section 81 to create a redundancy situation, and that whilst it is perfectly true that between the beginning 1991 and 1 May there was a grey area in which the applicant was working on a temporary basis at the Leyton depot in the hope that his place of work at Southwark would quickly be resolved and restored by the respondents, it was clear that by 1 May 1991 no such resolution had taken place, whatever the respondents may have had in mind in the future.  Their instruction was, simply to work at Leyton.  As and from that meeting, the redundancy situation came into effect and the dismissal on 14 May was for redundancy, and not for failing to obey a reasonable order."

We should say of that paragraph, that where the Tribunal use the phrase "once the respondents moved the place of employment of the applicant to another site altogether, that operated under section 81 to create a redundancy situation", we are satisfied that that situation was what the Tribunal conceived it to be on 1 May 1991, not at the end of 1990 or at any earlier date.  We think that this construction is made clear by the penultimate sentence of paragraph 13 in which the Tribunal stress that "it was clear by 1 May 1991 no such resolution had taken place, whatever the respondents may have had in mind in the future".  But be that as it may, we have to consider whether, in the light of those findings, the Tribunal was entitled to find that the Respondent was dismissed for redundancy on 15 May.

	We are satisfied firstly that the Tribunal found as a fact that the Respondent's place of work throughout was Southwark.  That seems to us to emerge from paragraph 2 of the decision in which the Tribunal found:

"the Victoria Bus Depot was closed and by mutual consent his place of employment became Southwark instead of Victoria."

That finding is reinforced by a sentence in paragraph 10 of the decision when in considering the new terms offered to the Respondent on 1 May 1991, the Tribunal found that "His workplace was to be Leyton".  That suggests to us that before the new arrangements were to come into effect his place of work would be somewhere else.

	Thirdly, and perhaps most importantly, we are satisfied that in paragraph 13 the reference to the Respondent's hope that:

"his place of work at Southwark would quickly be resolved and restored by the respondents"

makes it plain that it was at Southwark.  It was Southwark which the Tribunal regarded as the Respondent's place of work.

	The next question which we have to ask ourselves in the light of that construction is "was there a redundancy situation in Southwark at the time when the Respondent was dismissed?"  We look at subsection 2 of section 81 of the Act which reads as follows:

"For the purpose of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to -

(a)the fact that his employer has ceased or intended to cease to carry on the business for the purposes of which the employee was employed by him, or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed, or

(b)the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished."

It is perfectly plain, as the Tribunal found, that the Appellants had ceased to carry on business at Southwark with effect from the end of 1990 the Respondent was not dismissed as a result of the redundancy situation at Southwark until May 1991.  The fact that the Respondent was not dismissed until May 1991 - some five months after the closure of the Southwark Depot - does not mean that the dismissal was not wholly or mainly the result of the redundnacy situation at Southwark.  It seems to us therefore that if, as the Tribunal found, the Respondent was dismissed on 14 May, there was evidence before it which entitled the Tribunal to find that that dismissal was on the ground of redundancy.

	That would be the end of this appeal save for the introduction into the argument by Mr Cape of section 84 of the Act.  We do not propose to dwell at length upon the nature of Mr Cape's submissions because as we see the situation, section 84 never arose as a matter for consideration by the Tribunal.  

	Firstly, so far as we can see, though we do not base our decision on that ground, the point was not argued before the Tribunal and the Tribunal certainly made no reference to it.  Secondly, as the Tribunal found, the Respondent's contract of employment provided that his place of work should be Southwark and only Southwark throughout.  His work at Dartford and Leyton was of a temporary nature, designed to enable him to fill in until work started afresh in Southwark.  But thirdly, and perhaps most importantly, we are satisfied that the trial periods contemplated by section 84 never started.  We have been referred to Turvey & Others v C W Cheney & Son Ltd [1979] ICR 341.  For the purposes of our decision the facts do not matter but we cite from the judgment of Bristow J, delivered by Miss Smith, a short passage on page 344C-F:

"It is clear law that where one party to a contract acts in such a way as to show he no longer intends to be bound, the other party can decide at his option whether or not to treat the contract as at an end.  Moreover he does not necessarily have to make up his mind at once but it entitled to a reasonable time in which to do so.

The application of this common law principle to contracts of employment is illustrated in Shields Furniture Ltd v Goff [1973] I.C.R. 187, 190, where Brightman J. said that the mere fact that an employee started to work under the terms of a new contract offered him by the employer did not constitute an acceptance of the new contract so that he must be regarded as having made up his mind not to rely on the repudiation of the old contract.  You have to see whether the employee is accepting the new contract by his conduct, or whether he is giving it a try to see whether he will accept it or not."

Bristow J. went on to indicate that the trial period now enshrined in section 84 of the Act did not come into operation until the employee had had that reasonable period to consider whether or not he should accept as a repudiation of his contract of employment, the new terms offered by his employers.

	This is a case where the Respondent at some inconvenience to himself, determined upon the closure of the Southwark Depot to give a trial to the alternatives which his employers suggested  and worked from February 1991 first at Dartford and then at Leyton.  In both cases the changed arrangements must inevitably have caused him considerable inconvenience and as the Tribunal found, required him to spend some 3 hours of each day in travelling.  He gave the new arrangement we think, a very fair trial, and it was only on 1 May when it became apparent to him that what was to have been a purely temporary arrangement, would in future take on a degree of permanence that he said "enough is enough" and decided he could no longer carry on.  Because, as it seems, section 84 was not argued specifically before the Tribunal, there is no express finding that the Respondent reasonably, to use the words of Bristow J., used the period from February to 1 May as a period to enable him to decide whether or not to accept a repudiation of his old contract to work at Southwark.  But in our judgment the Respondent, having regard to the fact that at all material times both he and his employers regarded his work at Leyton and Dartford to be of a purely temporary nature, acted reasonably in not finally deciding whether to accept the new arrangements until they were put to him on a permanent basis on 1 May 1991.

	In those circumstances the trial period or periods envisaged by section 84 of the Act never started and accordingly for that reason too, in our judgment there is no reason to interfere with this decision of the Tribunal and the appeal must accordingly be dismissed.