Abernethy v Mott, Hay and Anderson

JurisdictionEngland & Wales
Judgment Date06 February 1974
Judgment citation (vLex)[1974] EWCA Civ J0206-2
CourtCourt of Appeal (Civil Division)
Date06 February 1974

[1974] EWCA Civ J0206-2

In The Supreme Court of Judicature

Court of Appeal


The Master of the Rolls (Lord Denning),

Lord Justice Cairns and

Lord Justice James.

Ian Abernethy
Mott Hay and Anderson

Mr. PETER PAIN, Q.C., and Mr. WILFRED GETZ (instructed by Messrs. Clinton Davis & Co.) appeared on behalf of the Appellant.

Mr. R.M. YORKE, Q.C., and Mr. ANTHONY GRABINER (instructed by Messrs. Slaughter and May) appeared on behalf of the Respondents.


The need not trouble you, Mr. Yorke.


Mr. Ian Abernethy is a civil engineer. He read engineering at St. Andrew's. In 1950 he took an Honours Degree. Since that time he has been employed as a civil engineer with Mott Hay & Anderson, a firm of the highest standing. They specialise in bridging and tunnelling. Mr. Abernethy has been a Fellow of the Institute of Civil Engineers; a Fellow of the Institute of Structural Engineers; a Fellow of the Institute of Arbitrators. After 22 years service Mr. Abernethy was given notice to terminate his services. The notice was given on 25th February 1972 and expired on 31st March 1972. The firm stated that they dismissed him for redundancy. On that basis the redundancy payment would amount to some £850. But the firm offered to increase it by making an ex gratia payment to him of another £750. Mr. Abernethy was not at all satisfied with the offer. He felt that he had been unfairly dismissed. So he did not accept those payments. He went to the Industrial Tribunal. He alleged that he had been unfairly dismissed and claimed compensation. The Industrial Tribunal found that his claim had not been made out. They dismissed the claim. On appeal, the Industrial Court did the same. Now he appeals to this Court.


It must be remembered in all these cases that the appeal from the Tribunal is only on law. There is no appeal on fact. Mr. Pain, who has appeared for Mr. Abernethy, takes two points. The first point is that Mr. Abernethy was told that he was dismissed for redundancy. Yet it turns out, that when the matter is properly investigated, there was not a redundancy situation. He was, in truth, dismissed for other reasons. Mr. Pain submits that the employers, having committed themselves to the reason of redundancy, cannot afterwards go back on it and rely on another reason. The second point made by Mr. Pain is that the realreason for his dismissal was because the employers thought that he was not fit to be promoted to a higher grade. That, says Mr. Pain, is not a sufficient reason for dismissing him. It was therefore an unfair dismissal.


Now for the facts. It is quite plain that from 1950 Mr. Abernethy was engaged on important work for the firm on various sites, such as the Dungeness generating staion, the bridge over the Tamar and a canterlever bridge at Newport in Monmouthshire, a bridge at Newcastle-on-Tyne, and on the Blackwall Tunnel. But from 1969 he was not working on distant sites. He was engaged on work which he could do from head office. One was the Dartford Tunnel. Another was the Cringle dock project. In 1971 the work at the Cringle Dock was coming to an end. There was not much for him to do in connection with it. The partners considered on what work they could employ him. They had no more work which he could manage from head office. The only suitable work which they could find for him was in a scheme for raising the banks of the River Thames. They thought that he should be seconded to the G.L.C. for it. That meant his going to the site and working there. Mr. Abernethy was not willing to go out from head office to work on site. He felt that his place was head office. So he refused to accept that offer which was made to him. In those circumstances the partners, not having any suitable niche for him, decided that they must dismiss him. I will read two letter which led up to his dismissal. On 17th November 1971 Mr. Bartlett wrote to him and said:-


"Since seeing you I have discussed your position with my partners and we have come to the conclusion that secondment to the G.L.C. for their bank raising scheme is the only prospect open to you with the firm. In the circumstances,unless you are willing to accept this appointment, you should look for a post elsewhere. As discussed with you, it is clear that you are not advancing within the firm in a manner commensurate with your age and ability and I feel certain that a move would be very much to your benefit.


We must have your final answer as to the G.L.C. secondment by Friday morning."


He was unwilling to do. So eventually on 25th February 1972 the manager wrote and said to him:-


"It is with regret that I have to confirm the advice given to you at the discussions at the end of last year with Dr. Megaw, Mr. Bartlett and myself that, following an overall review of our staff resources, we must declare you redundant on the 31st March, 1972, your services to terminate on the 31st March, 1972.


"Your particular interests and experience of multi discipline projects make it impossible to absorb your services into the current and anticipated work of the firm, and your present appointment to the Cringle Dook project having now terminated."


So his employment came to an end. As I said, he refused the redundancy payments. He claimed unfair dismissal. "When he put his case to the Tribunal, he said:


"I can think of no reason for my dismissal unless my former employers have resented the fact that I have sought to advance myself within the Company and in the past have declined posts which would have had the reverse effect."


In their answer, the employers, when they were asked what was the reason for the dismissal, said: "(a) Redundancy, and/or (b) the incapability of the employee for performing work of the kind which he was employed by the employer to do."


During the course of the hearing before the Tribunal it became plain that the employers were mistaken in their view of the law. He was not redundant; there was plenty of work within the firm for people of his standing and ability. The firm was recruiting new staff of this very kind. The truth was that he was unsuitable and could not be fitted in. The employers, it seems to me, were mistaken, but quite reasonably mistaken. Although they made a mistake in thinking he was redundant, it was quite an honest opinion.


In order to show the real reason for his dismissal, we have read many reports and assessments which were made every year upon him by the partners in the firm. These show that he had a lot of very good points. He was hard working, conscientious, thorough, interested in new techniques. His relations with clients were very satisfactory. He was an effective routine engineer. All those good things are said in the reports about him. But, on the other hand, the partners noted that he was below average; he was of limited potential; he could only take tasks with limited responsibility: he was immature; not adaptable. They could not fit him...

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