O'Brien v Associated Fire Alarms Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SALMON,LORD JUSTICE EDMUND DAVIES |
| Judgment Date | 01 March 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0301-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 March 1968 |
[1968] EWCA Civ J0301-3
In The Supreme Court of Judicature
Court of Appeal
Civil Division
From the Divisional Court Queen's Bench Division.
The Master of the Rolls
(Lord Denning)
Lord Justice Salmon and
Lord Justice Edmund Davies
MR. PETER PAIN, Q. C. and MR. A. LESTER (instructed by Messrs Lawford & Co.) appeared as Counsel for the Appellants.
MR. D. ASHTON (instructed by Messrs Travers Smith, Braithwaite & Co.) appeared as Counsel for the Respondents.
This is the first case to come before the Court of Appeal about redundancy payments, Company called Associated Fire Alarms Ltd. have an extensive business throughout the United Kingdom. They supply and install fire and burglar alarms. They have divided the country up into large areas, each of which is controlled from a branch office. In this case we are concerned with the North-Western area controlled from the Liverpool office. It is a very large area, extending from Aberdovey in Mid-Wales to Whitehaven in Cumberland. It must be 200 miles long at least.
The case concerns three men who were employed at Liverpool: Mr. O'Brien and Mr. Browning, who were electricians, and Mr. Pritchard, who was an electrician's mate. They all had their homes at Liverpool. They joined the Company at Liverpool'. They had been employed at Liverpool for some years in particular Mr. Browning for seven years. They worked from their homes, going out each day to houses in the vicinity of Liverpool and back each night. They were engaged mainly on fire alarms. But it was quite open to them, as they were electricians, to be put on burglar alarms as an alternative.
Then a time arrived when the work in the vicinity of Liverpool fell off. The Company had not enough work to employ these three men in that neighbourhood. A new young manager came to take charge of the North-Western area. He decided that these three men ought to go up to Barrow-in-Furness and work there. It is quite a journey to get from Liverpool to Barrow. The men would have to go by road up to Kendal and back down the peninsula. They could not possibly do it in the day. It must be 120 miles by road, and not an easy journey at that. If the men were to work at Barrow it would take them away from Liverpool where their wives and families were. It meant leaving their homes for some months. (The period is not specified in the facts before us). Thereupon these men quite reasonably said: "We are not willing to go to Barrow". They refused to go. Thereupon the new youngmanager gave them dismissal notices. He dismissed them at a week's notice, although by their contract they were entitled to four weeks' notice. They claimed redundancy payments under the Redundancy Payments Act 1965. The Tribunal rejected their claim. They appealed to the Divisional Court on a point of law. The Divisional Court refused their appeal. Now the matter comes, with our leave, to this Court.
The scheme of the Act is this: If a man has served his employers for two years or more and is then dismissed because they have no work for him, he is entitled to be paid a redundancy payment: but if he is dismissed because of his own conduct, he is not entitled to a redundancy payment. Nor is he so entitled if the employer offers him suitable alternative employment which he unreasonably refuses.
In this case the employers said that the men were bound, under their contract of employment, to go to Barrow as directed: and that it was a breach of contract for them to refuse. Accordingly, the men were dismissed by reason of their own conduct and were not entitled to a redundancy payment, see Section 2(2)(b) of the Act. But the men said that they were not bound to go to Barrow; and that they were not in breach of their contract. They were dismissed, they said, because there was no work for electricians at Liverpool which was "the place where they were employed" and claimed, therefore, to be entitled to redundancy payments, see Section l(2)(b) of the Act.
In considering this dispute, it is important to remember that "an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy", see Section 9(2)(b) of the Act. The men start off, therefore, with an initial advantage. It is to be presumed that they were not in breach of their contracts of employment. But still it was open to the employers to prove that they were in breach. and that is what the employers set out to prove. They said it was a term ofthe contracts of these men that they could be required to go to any place within the North-Western area which was directed from the Liverpool office, that is, anywhere from Aberdovey to Whitehaven. There was nothing in writing to that effect. The Tribunal so found. They said "This requirement to move to another part of the area is not to be found in any written contract. We were not told that this particular Company operates any national or local agreement which would require any employee to be mobile". Nevertheless, although there was no express term to that effect, the Tribunal found that there was an implied term. They said: "It appears to us that it must be an essential term of the employment of any operative by a contract electricity firm doing work of this or any similar type that such operatives should be liable to be sent to any part of the Company's area in order to carry out a particular job of installation or maintenance". Accordingly, they found that the men were in breach of their contract and were not entitled to redundancy payments. The Divisional Court upheld the Tribunal's decision. The Lord Chief Justice read the paragraph about the "essential term" and said: "That is a finding of fact and is binding on this Court".
I venture to differ. I have always understood that the question whether a term is to be implied in a contract is a question of law for the Court and not a question of fact. The primary facts, of course, and the surrounding circumstances have to be found by the tribunal of fact. But, that being done, the implication of a term is an implication of law. That was clearly stated in this Court by Lord Justice Scrutton in Comptoir Commercial Anversois v. Power Son & Co., 1920, 1 King's Bench, pp. 989/9. It is also apparent from the elaborate discussion as to the terms to be implied in a contract of employment in Lister v. Romford, 1957 Appeal Cases, p. 555.
In my opinion, therefore, the finding of an implied term could have been reviewed by the Divisional Court; and itcan be reviewed by this Court. On the facts found by the Tribunal, I am quite clear that there was no such implied term. These three men were recruited from the Liverpool area. They had their houses in the Wirral. They worked from their homes for years, going each day to work and returning home each night. They could not reasonably be expected to go off for months to a far place like Barrow, leaving their wives and children behind and only getting home at week-ends. The Tribunal, in several places of their written decision, admitted as much. The Tribunal recognised that the employers could not dismiss the men at a moment's notice for their refusal, but would have to give them their full four weeks notice. When talking about suitable alternative employment, they said they had "no difficulty at all or doubt in holding that the refusal to go to Barrow was reasonable, in view of the domestic difficulties and the distance of travel". All this goes to show that there was no implied term that they could be sent anywhere in the North-Western area. The only persons who suggested the men could be sent anywhere were the young executives. One of them had been at the Liverpool office for four months the other for fourteen months. They said they "considered" that the men could be sent anywhere in the area. That is quite insufficient to found the alleged...
To continue reading
Request your trial
- Stevenson v Teesside Bridge and Engineering Ltd
- Kamaruddin bin Tokimon and Others; Metaldek Industries Sdn Bhd
- Parsons v Albert J. Parsons & Sons Ltd
-
Basanta-Henry, Audrey and Others v National Commercial Bank Jamaica Ltd
...Edition Vol I. Paragraph 903: The implication of a term is a matter of law for the Court (See O'Brien v Associated Fire Alarms Limited 1968 1 W.L.R. 1916 ) and whether or not a term is implied is usually said to depend upon the intention of the parties as collected from the words of the agr......