Appeal No.	 EAT/926/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 December 1998

Before
THE HONOURABLE MR JUSTICE LINDSAY
MR W MORRIS
MISS S M WILSON

MR & MRS H BARLOW T/A THE FARM SHOP 
BAYCLIFFE	APPELLANTS

MRS S GRANT	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	NO APPEARANCE BY
OR REPRESENTATION
ON BEHALF OF
THE APPELLANTS	

	MR JUSTICE LINDSAY:     We have before us by way of a preliminary hearing an appeal by Mr and Mrs H. Barlow t/a The Farm Shop in Baycliffe in the matter Mrs Sandra Grant against Mr and Mrs H. Barlow.

	There was a decision of the Industrial Tribunal under the chairmanship of Mr J.J. Hargrove on 28 May 1998 at Carlisle and the decision was promulgated on 16 June 1998.  It was a unanimous decision as follows:

“(i)  the applicant [Mrs Grant] is entitled to a redundancy payment;
(ii)  the respondent is ordered to pay to the applicant the sum of £998.40 as a redundancy payment.”

	Mr and Mrs Barlow neither attend nor are represented before us today.  We have had a letter that tells us that they will not be attending.  It is not suggested that there is any wish to attend that has been frustrated at the last moment by illness or travel difficulties or anything of that nature but rather that they have chosen not to attend.

	The position that was before the Industrial Tribunal is as follows.  Mrs Grant, the Appellant below, had by August 1997, worked at the shop premises in Baycliffe for some years under differing ownerships.  From 1995 it was owned by the Respondents.  They ran a fairly modest style of business employing in all some 23 persons and they themselves worked in the business but, at Baycliffe itself, the shop was not of a size to require many staff.  Mrs Grant was the manageress of the shop and the rest of the staff were largely part-time but there were other parts of the premises dealing with butchery and bakery work.  

	In July 1997 Mr and Mrs Barlow, the Appellants before us, decided to close the Baycliffe shop and that part of the operation.  Mrs Grant was offered a job in the bakery.  The nature of the job that she was offered was not specified and she turned it down.  On 30 July 1997 she was written to by Mr and Mrs Barlow and what the Industrial Tribunal said about that was this:

“On 30 July ... the respondents wrote to the applicant formally terminating the applicant’s employment with effect from 9 August 1997.  On 13 August 1997 ... the respondents wrote stating:
“Further to our telephone conversation on Monday 28 July 1997, when I informed you of the closure of our Anchor Road shop, I also offered you an alternative position within our company, primarily working at our Baycliffe bakery department.  If you do not wish to accept out offer of an alternative position with ourselves, please confirm your decision in writing.
Yours sincerely.”

	And then they continue:

“On 14 August 1997 ... the applicant [the respondent before us] replied:
‘I am sorry but I can’t accept a position in the bakery as I have had no experience in confectionery’
Yours sincerely.”

	In mid-September Mrs Grant wrote to the Barlows asking for a redundancy payment and, not having received one, she then applied to the Industrial Tribunal and commenced proceedings in the Industrial Tribunal.  The Industrial Tribunal directed itself as follows (I am looking at paragraph 8 on page 7):

“Once it is proved that the employee was made redundant, [and that was not disputed before the Industrial Tribunal] the burden lies upon the employer to show, in order to avoid the statutory obligation to make a redundancy payment, that he or she made a suitable offer of employment in relation to the employee.  That obligation applies if the terms of the offer are different from the terms contained in the original contract of employment of the employee (see section 141 (3) (b) of the 1996 Act).  The obligation rests upon the employer to show that the offer was a suitable offer in relation to the employee.  The obligation is to specify in full the details of the job on offer so that the employee can make an informed decision whether or not to accept that offer.  If it should turn out that the specified details constitute a suitable offer in relation to the employee, the employee will then lose the right to a redundancy payment if he or she unreasonably refuses that offer.  However, the obligation upon the employer is to give sufficient details for such an informed decision to have been made. ....”

As to that the Industrial Tribunal found a little later (still on page 8):

“However, we find that it was insufficiently detailed for the applicant to make an informed decision whether or not to accept it.  It may well have been hat even if a detailed offer had been specified in the terms which the respondent Mrs Barlow has indicated to the Tribunal she intended to make, and in particular, if the further alternative of a part-time job at the bakery-cum-cafe at the market had been made clear, the employee would still have refused for personal reasons, but that is not the position which the Tribunal faces.  The fact of the matter is that, although the respondents in this particular case acted instinctively in the way in which the Act envisages, they did not comply with the strict requirements of the Act in order to excuse the obligation to pay a redundancy payment.  It is quite clearly established that the burden is on the employer to show a sufficiently detailed offer and that that offer is suitable - see Jones & Another - v - Aston Cabinet Company Ltd [1973] 8 ITR 356.  For all of these reasons the Tribunal decides that the applicant was not made a suitable offer of alternative employment as it turned out.  In those circumstances the applicant is entitled to a redundancy payment.”

	There was thus no finding by the Industrial Tribunal that Mrs Grant would have turned down a new job whatever it was and one notes that her answer to the earlier offer that had been made to her was not of the broad “it does not matter what you offer me, I am not going to accept it” kind of response, but a particular response that took into account the particular nature offered because what she said in the passage we have already quoted is “I am sorry but I can’t accept a position in the bakery as I have had no experience in confectionery”.  It was not a response of a kind that was a refusal of any job that might have been offered.

	Mr and Mrs Barlow appealed (as we have indicated, they do not attend) and say that they had not realised that the offer to be made to an otherwise redundant employee had to be specific.  They cite a Department of Trade and Industry booklet which was supplied to them by ACAS.  It does not seem to be a very relevant booklet because it is a booklet that is plainly giving guidance to the employee rather than the employer and it does not say that an offer suffices for the purposes of the law even if it is unspecific.  Moreover, even if it did, it would not represent the law because one does not find the law by looking at D.T.I booklets.  The Barlows assert that the evidence, as it was given, was in their favour.  What they say in a little written letter of 20 July that could be taken to be an informal Skeleton Argument or Notice of Appeal was this:

“Mrs Grant stated clearly to the Tribunal - under cross-examination by ourselves - that she did not wish to continue her employment with The Farm Shop irrespective of what job had been offered.
Mrs Grant admitted that she wanted to spend more time with her family - and no longer wished to work - as her family were now self sufficient ie at college or in employment, and she felt that she did not require the extra monies from her own employment.”

	As to that there is, of course, no finding to that effect, as we have indicated, and in any event the Industrial Tribunal properly directed itself, as we see it, on the law.  The Industrial Tribunal specifically did not find that Mrs Grant had indicated that she would decline any job whatever it might be.  It seems to us that the view of the law taken by the Industrial Tribunal was correct.  It may seem a little unnecessary in some respects that, if one has an employee who is determined not to accept any alternative, one still has to make a detailed offer, but that is the law and the Industrial Tribunal properly directed itself.  If an offer is not sufficiently detailed so that the recipient cannot make an informed decision upon it, then the particular statutory exception which allows a redundancy payment not to be made is not made good.  Here there was no sufficiently specific offer.  It would not, strictly speaking, have helped Mr and Mrs Barlow even if the evidence had been found to be that Mrs Grant would not accept any job because, even then, to bring themselves within the statutory exception the offer has to be of such a nature that an informed decision upon it can be made.  As we say, we do not see that the Industrial Tribunal committed any error of law here.

	It is only with errors of law that we are concerned and accordingly, although we have some sympathy with the difficulties that small businesses find themselves in in dealing with relatively complicated corners of the law, we cannot alter the law on that account and we dismiss the appeal.