Appeal No. EAT/391/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 15 March 1995

	Before

	THE HONOURABLE MR JUSTICE BUCKLEY

	MR J H GALBRAITH CB

	MR ERIC HAMMOND OBE

INGERSOLL-DRESSER PUMPS (UK) LTD	APPELLANTS

MR I W TAYLOR	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	Mr N Chronias
(Legal Adviser)
Engineering Employers' Federation
Broadway House
Tothill Street
London SW1H 9NQ

For the Respondent	NO APPEARANCE BY OR 	ON BEHALF OF 	RESPONDENT

	MR JUSTICE BUCKLEY:  The Applicant before the Industrial Tribunal, Mr Taylor, was a chargehand machine operator with the Respondents, Ingersoll-Dress Pumps (UK) Ltd, and he started employment with them on 19 August 1991.  His employment, as found by the Industrial Tribunal, ended on 10 September 1993.

	The relevant circumstances were that the employers took the view that their operation at their Huddersfield plant had become non-viable and they decided that operations should cease on 31 October 1993 and they made an announcement concerning the Huddersfield operation to that effect on 17 August.  In a nutshell, Mr Taylor appears to have found alternative employment and rather than waiting to see how things worked out and/or to work out the time through to the end of October, he himself gave notice and left earlier, to be precise, on 10 September, but he claimed, nevertheless, his redundancy payment.  The Tribunal decided that he was entitled to the sum of £410, being two weeks' wages and the employers appeal to us.

	The starting point has to be the announcement by the employers dated 17 August and we read it:

		"We have undertaken a thorough review of the first half year performance, forecast for the second half and preliminary plans for 1994.  From this review we have concluded that our markets will continue to be affected to a degree that makes the future operation of Huddersfield non-viable.

		It is therefore with regret I must now advise that we will cease our Huddersfield Operations on 31st October, 1993.  Following upon this announcement we will enter into statutory consultation with individual employees over the coming weeks."

That was signed by a Mr Nicholas, who is the Manager After Sales.

	The finding of the Tribunal set out in paragraph 5 of their reasons, is to this effect, in referring to that announcement:

		"The announcement makes it quite clear that the operation was to cease on 31 October 1993 which, in fact, it did.  Therefore we are satisfied that that announcement on 17 August was an announcement of termination of employment."

They then go on to deal with the Applicant's own letter terminating his employment on 10 September, to which we have already referred.

	Mr Chronias states two points on that finding and decision of the Tribunal.  First of all he submits that the Tribunal have gone wrong in law because they seem to treat the fact that the Respondent's operations or undertaking was to cease on 31 October as necessarily meaning that the announcement amounted to a termination of employment to each individual employee.  As a subsidiary point, relying just on the Tribunal's findings, he also submitted that by referring to the fact that the undertaking did, in the event, cease on that date, they were importing a degree of hindsight which is inappropriate as an aid to construing the meaning or the effect of the announcement.

	We think that Mr Chronias is, in fact, right on both counts.  He referred us as, indeed, the Tribunal were also referred, to the case of Doble v Firestone Tyre & Rubber Co Ltd [1981] IRLR 300.  Having regard to that case and one or two others that we looked at, it seems plain to us that a general notice of intention to cease operations at a particular plant, albeit that a date is stated when that is to happen, is not necessarily the same thing as an individual notice of termination of contract of employment.  

	The circumstances in which the effect of such a notice or any notice falls to be determined will, of course, vary from case to case but typically and fairly obviously employees will have differing lengths of service and, therefore, will require or be entitled to different periods of notice.  There may be, as was the case here, that the employer has other operations nearby where some employees may be re-employed.  It does not seem to be the case here but a general statement of intention could, of course, change.  We recognize the possibility that such a general notice of intention could be so worded, that upon its true construction it would amount to a notice of termination of each individual employees' contract of employment.  But in our view, that would be unusual and very often undesirable.  Individual employees are entitled to know exactly where they stand on a matter as important as termination of employment.  They are entitled to more than a general statement of intent, which could, however unlikely, clearly change.

	The normal situation and one which clearly the employers were seeking to follow here, is to give, for the benefit of all, a general warning of the cessation of an undertaking and to give that warning in plenty of time.  What then follows, as is expressly stated in this case in the announcement, is that there will be consultation with individual employees over a period of time, either directly or involving a union and during those consultations some of the matters we have already mentioned will be discussed and worked out.  Following on those discussions, individual notices will be given at the appropriate time.  By "appropriate time" we mean appropriate to each individual.  That also happened in this case and we have an example of one such notice to a Mr Bennett, which was given on 15 September 1993.

	At the end of the day, it is right, of course, to construe any such document or announcement, as we have said, in the circumstances.  All we have endeavoured to do is identify what we believe to be the normal situation or, certainly, a not unusual situation and the present case is no more than an example of that.  We think a Tribunal should be slow to construe such a general announcement as amounting to an individual notice of termination to each employee.  We feel that could place employees in some uncertainty or difficulty, not least in relation to serving counter-notices under s.85.  However, it is a matter of construing the notice itself, albeit with regard to the matters we have mentioned and any others relevant to the particular case and we have no doubt here that this announcement did not amount to a notice to each individual employee terminating his contract.  It was clearly envisaged that those would follow as, indeed, they did.

	That would be enough to dispose of this appeal but Mr Chronias had a second point, which we will mention very briefly, what happened in this case was that Mr Taylor, having presumably obtained alternative employment, himself served a notice that he wished to go and did so in September.  The effect of that under s.85 was that he terminated the employment himself.  Section 85, broadly speaking, sets out a regime whereby in certain circumstances an employee wishing to go or leave earlier, may do so, and yet preserve his right to redundancy payment.  That right is subject to a counter-notice from the employer, which again is dealt with in the section.  However, the section only applies, as is expressed in subsection (1) where the employer has given a notice to terminate the contract and the employee gives the notice himself within what is called the obligatory period and the obligatory period under subsection (5)(b), which would be the relevant one here, is the period equal to the minimum period referred to in paragraph (a).  In this case, that was a fortnight or, in the case of Mr Taylor, a fortnight, expiring at the time when the employer's notice expires.  So in order to make use of the regime under s.85, he would need to have given his counter-notice in the fortnight before the employer's notice itself expired, so even if one were to treat the general announcement as such a notice, that would be a fortnight before 31 October.  So the notice from Mr Taylor in this case, back in September, did not trigger the protection or effect of s.85 and would itself, on general contractual principles, have amounted to a termination of the contract by him.

	The Tribunal took a contrary view and on that also we think, with respect, they have erred in law.  What we believe misled them was that they focused on a meeting of 19 August which was the beginning of the consultation process referred to, at which a Mr Bowman, for the employers, made plain to the employees, that the employers wanted or required the employees to work to 31 October because they had contracts to complete.  The Tribunal treated that as an ineffective counter-notice because it was not in writing but in doing that, it seems to us, they have overlooked the prerequisite of the notice by the employee himself and that had not arisen as of 19 August and, as we have endeavoured to describe, never did arise effectively, so far as s.85 was concerned.  On that subsidiary ground also, we feel this Tribunal went wrong in law.

	This appeal will be allowed and it follows from our decision that Mr Taylor was not, in the circumstances, entitled to the redundancy payment.