Gordon Laing V. Thistle Hotels Plc
| Jurisdiction | Scotland |
| Judge | Lord Eassie |
| Date | 23 April 2001 |
| Docket Number | CA134/14 |
| Court | Court of Session |
| Published date | 23 April 2001 |
| OUTER HOUSE, COURT OF SESSION | |
| CA134/14/00
| OPINION OF LORD EASSIE in the cause GORDON LAING Pursuer; against THISTLE HOTELS PLC Defenders: ________________ |
Pursuer: Miss Paterson; Simpson & Marwick W.S.
Defenders: Hanretty; Brechin Tindal Oatts
23 April 2001
[1]The pursuer in this action was formerly employed by the defenders. At an earlier stage in his employment history he was employed by a company within the Scottish & Newcastle Breweries Group whose undertaking was acquired by Mount Charlotte Investments PLC. His contract of employment with that company transferred to Mount Charlotte Investments PLC apparently pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 1981. The current defenders have subsequently acquired responsibility for the employer's obligations under the pursuer's contract of employment, the route or method of that transfer of responsibility being immaterial for present purposes. The principal claim in the action is for payment of a contractually based redundancy payment and is advanced in the first conclusion of the summons. There is also a second conclusion for payment of a relatively minor sum respecting other matters relating to a dispute concerning the length of notice of termination of employment and its consequences for salary, lunch allowance and car use, but none of these arise for present consideration.
[2]In January 1999 the post occupied by the pursuer in his employment with the defenders was that of general manager of their car park at Greenside Car Park in Edinburgh. In that month ownership and operation of the car park was transferred to a third party, NCP. The particular post occupied by the pursuer therefore ceased to exist and the defenders offered to the pursuer an alternative post as "Essential Services Manager" in Glasgow. The duties and responsibilities of that post were indicated in a letter of 20 January 1999 from the defenders to the pursuer as being "...... management of the stores and car park at Glasgow Thistle. There will also be the requirement on occasions to carry out audits in hotels at the direction of the Operations Director for Scotland.....". No change to salary or benefits would result were that post to be accepted by the pursuer. There followed thereafter a relatively protracted exchange of correspondence between the pursuer and his solicitors on the one hand and the defenders on the other. The upshot was that the pursuer declined to take up the offer of employment as the Essential Services Manager in Glasgow even on the basis of a trial period of four weeks. The position ultimately adopted by the pursuer in that correspondence was that the post in Glasgow was not suitable alternative employment and it had not been unreasonably refused. In his pleadings, however, the primary position adopted by the pursuer is that there was no obligation upon him to take up any offer of any possible alternative employment with the defenders once his particular post had become redundant and that contention was the one principally advanced by counsel for the pursuer in the debate before me.
[3]Turning to the documents relied upon or referred to, it is accepted that subsequently to the transfer of his contract of employment to Mount Charlotte Investments PLC, the pursuer was provided with a document, dated 29 May 1991, addressed to him and intituled "Codicil to Contract of Employment" (No.6/1 of process). In its opening paragraphs that document reads as follows:-
"This document applies to Ex Thistle Head Office Junior Managers (Grade B) who transferred to Mount Charlotte Investments Plc on 1st November 1989 and is integral with their contract of employment.
The following terms and conditions obtaining under that contract of employment are preserved in terms of the Transfer of Undertakings Act. [sic]".
Of the terms and conditions thereafter set out in the Codicil only head 5 is of relevance to the current proceedings. It is in these terms:-
"Redundancy Payment Scheme formula per year is:-
up to age 30 -3 weeks pay
between 30 and 40-4 weeks pay
between 40 and 50-5 weeks pay
over 50-6 weeks pay".
The Codicil proceeds to say that -
"The rules concerning the above are contained in:"
and there follows thereafter a list of various handbooks or booklets of which the only one seen as relevant to the present claim is the "Scottish & Newcastle Breweries Redundancy Booklet April 1988".
[4]That booklet (No.7/26 of process) contains in paragraph 1.1 a statement of its aim, namely:-
"The aim of this booklet is to ensure that, in the event of redundancy, you are made fully aware of the various forms of assistance which are available to you; to help you find another job as quickly as possible; and to ease some of the difficulties which could arise".
Notwithstanding that description of its aim, both parties to this litigation have approached matters on the basis that what is written in the booklet is to be treated as forming part of the actual terms of the pursuer's contract of employment.
[5]Section 2 of the booklet is headed "Redundancy Payments". Paragraphs 2.1, 2.2 and 2.7 are in these terms:-
"2.1Company policy is to comply with the law both in letter and in spirit by providing compensation for redundancy to employees.
2.2No employee will receive less than the amount specified under the provisions of the Redundancy Payments Act.
2.7Entitlement to redundancy compensation under the Company scheme is restricted to eligible employees who continue their employment up to the official date of termination or who leave earlier with the agreement of the Company. If this condition is not fulfilled, then the state redundancy scheme will apply as appropriate".
Section 3 and 4 are intituled "Pensions and Life Assurance" and "Company Benefits" respectively. The text in each section is relatively brief and is couched essentially in terms of the giving of advice. Thus paragraph 3.2 tells the employee, not entitled to an immediate pension, of two options open to him. Paragraph 4.3 informs the redundant or potentially redundant employee that his beer allowance will cease. On the other hand, para.4.1 informs such an employee that if he holds a company car he may have the opportunity at the company's discretion to purchase the car at advantageous terms.
[6]The provisions of the booklet to which counsel especially directed attention are those in Section 5 which is headed "Company Services". The paragraph particularly in focus was paragraph 5.2 but it may be appropriate to set out the preceding and succeeding paragraphs:-
"5.1The Company will make every effort to re-deploy those whose jobs have become redundant.
This may involve re-training.
You should feel free to apply for any vacancy which is advertised internally.
In any event the Company will continuously review vacancies as they arise with the possibility of redeployment in mind.
5.2Where alternative employment within the Company is available, you will be entitled to a period of four weeks in which to try out the new job. If at the end of that trial period it is mutually agreed that the newjob is not suitable, you will still be entitled to receive full redundancy compensation upon leaving the Company.
5.3Information may be available to assist you in the process of job hunting. You should contact your Personnel...
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