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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Siemens Communications Ltd v. Cooke & Ors [2003] UKEAT 0193_03_2111 (21 November 2003) URL: https://www.bailii.org/uk/cases/UKEAT/2003/0193_03_2111.html Cite as: [2003] UKEAT 193_3_2111, [2003] UKEAT 0193_03_2111 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE RIMER
MR R N STRAKER
MS P TATLOW
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR N DE SILVA (of Counsel) Instructed by: PJH Law Orion House 14 Barn Hill Stamford Lincolnshire PE9 2AE |
For Respondents Messrs Cooke, Harte, Holley Kirkman, Popplewell and Woods For the Respondent Mr Walker |
MR N COOKSEY (of Counsel) Instructed by: Messrs James H Tonner Johns & Co Solicitors 48 Walter Road Swansea SA1 5PW MR O SEGAL (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW |
THE HONOURABLE MR JUSTICE RIMER
The documents
"Reference is made to several policies which are held by the Personnel Department and your Line Manager and are available for perusal on request"
"You will be eligible for a vehicle from Group B under the Company Vehicle scheme at your next car change. You can if you so wish opt to take a car allowance instead of a company vehicle. Further details are given in the enclosed policy."
Clause 3 referred to various other terms which we need not detail, but we should mention the provision for the termination of the contract on notice, the length of notice varying with the length of service. The terms and conditions contain no provision to the express effect that, on termination of the contract, any car allowance currently being paid would cease to be paid.
"You can if you so wish opt to take a car allowance instead of a company vehicle"
"It is the Company's policy to offer employees who are entitled to receive a Company vehicle, the choice of either a car allowance or a vehicle"
Clause 2, headed "Eligibility", provided that:
"Car allowance will only be approved for employees eligible to receive a Company vehicle on the following occasions:-
(a) Commencement of employment.
(b) Promotion from one car grade to another, providing the existing vehicle, if any, can be re-allocated.
(c) At the end of the lease or due date for the replacement of a Company vehicle under the terms of the Company vehicle policy."
"3 AMOUNT OF THE ALLOWANCE
The appropriate level of allowance for each grade of vehicle is specified in Appendix 1. The allowance is reviewed annually and comes into effect on 1 April of any given year.
An employee opting to take a car allowance will receive the same level of allowance for a period of 48 months from the date the allowance is first taken.
The allowance will be paid through the payroll in monthly instalments and will be subject to income tax and national insurance deductions. It will be the responsibility of the employee to recover tax relief which is applicable from the Inland Revenue."
Those three paragraphs are not numbered, but for ease of subsequent reference we will refer to them as 3.1, 3.2 and 3.3.
"The employee's vehicle must be comprehensively insured including for Company business usage. The cost of insurance must be paid for out of the car allowance. A copy of the insurance policy and annual cover note must be forwarded to the Personnel Department. Failure to forward the relevant insurance documentation will lead to the withdrawal of the vehicle allowance."
"Be appropriate to the image of a representative of the Company"
and that it should be maintained and serviced in accordance with the manufacturer's recommendations and at the employee's expense. By Clause 6, Siemens also reserved the right to withhold the car allowance if the vehicle was considered unsuitable. Clause 7 provided that Siemens would provide fuel for business mileage in accordance with normal mileage allowance rates for employees using company cars. Clause 8 imposed a condition requiring the employee to allow Siemens to install and change telephones in the car. Clause 9, headed "Approval", provided that in order to initiate the payment of the allowance the employee must complete a particular Vehicle Authorisation form and have it authorised by the appropriate Divisional director. Clause 10, headed "Status of the Policy", provided that:
"The Company reserves the right to cancel or amend this policy"
"1.1 You will normally be eligible for a Company vehicle if you travel more than 12,000 miles per annum on Company business or if a vehicle is regarded as an essential tool for the satisfactory execution of your work….
1.3 Subject to Director approval, if you are entitled to a Company vehicle, you may elect to provide your own vehicle and receive a cash allowance. Details of allowances and conditions are given in Policy 3m."
Clause 2 was a long clause headed "Conditions of the Company Vehicle Scheme". Clause 2.12 provided:
"In the event of the termination of your employment by the Company or by your resignation, the Company reserves the right to recall your vehicle on any date specified by the Company. In no situation will you be allowed to utilise the vehicle after your last day of employment with the Company. Reference the Personnel Policy No 2b 'Termination of Employment Procedure'."
The decision of the Employment Tribunal
"When an employee leaves the Company, for any reason, the Vehicle Allowance will be paid by the Company only up to the end of the notice period. Under no circumstances will the Company be liable for any payment of Vehicle Allowance after the end of the notice period. Any finance agreement or personal lease arrangement entered into by an employee is the sole responsibility of the employee."
The applicants declined to agree to that change to the Allowance Manual, one to which they had not agreed and over which they had not even been consulted. Siemens threatened to withhold redundancy payments but the applicants stood firm and continued to refuse to agree to it. They were dismissed for redundancy on 31 December 2001.
The appeal to this Appeal Tribunal
"so that, if while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a comment 'Oh, of course!"
This test also imposes what Mr Justice Steyn called "a stringent test" in Associated Japanese Bank (International) Ltd -v- Credit du Nord SA [19891WLR 255, at 263. Although he was reluctant to accept that this case is about the implication of terms, Mr De Silva submitted that, if those principles are relevant, then the application of the officious bystander test supported the argument that the suggested limitation on the express terms of clause 3.2 should be implied.
[Mr De Silva asked for permission to appeal to the Court of Appeal]
Mr Cooksey, do you want to say anything about that? [Mr Segal was not present when judgment was delivered]