Complainant

Respondent

Parties

Ion  Lipsiuc

Northway Personnel Ltd.

Representatives

Mr. Liam O’Flaherty B.L instructed by Ms. Carla Bressan of PBN Litigation Solicitors

Krystian Boino, Boino Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00058166-001

08/08/2023

The Complainant made a single claim (CA-00058166) for a redundancy lump sum calculated in accordance with his statutory entitlements pursuant to the Redundancy Payments Act 1967 (as amended).

The Respondent contested the claim in full.

The matter was heard before me at the offices of the Workplace Relations Commission on the 13th of March 2024. 

In his complaint form, the Complainant summarised his complaint as follows:

I was temporarily laid off on 26/05/2023 and have not been contacted by my employer during the four consecutive weeks following this lay-off. I then sent my employer the RP9 form for the redundancy lump-sum to which they replied with a counter-offer. This counter-offer was not suitable for me. For the last three years, I had held a supervisor position and the counter-offer was for the position of a general operative. Also, the distance was not even close to what my previous job was. I have no choice but to take public transport and the counter-offer was located in an area which would have taken upwards of three hours to get to using public transport. My employer is aware of the fact that I do not possess a drivers license also. I was also sent a different offer which was the position of a traffic marshal, which I refused due to the position not even being close to the one I once held. I have not heard anything from my employer since then, in regards to others positions.

The Complainant was represented at the Adjudication Hearing by Mr. Liam O’Flaherty B.L instructed by Ms. Carla Bressan of PBN Litigation Solicitors.

The Complainant gave evidence under Affirmation.

Counsel for the Complainant cited Joyce v. Duffy Meats RP442/2008 and made oral submissions.

The Respondent was represented by Boino Solicitors.  A written submission was delivered stating as follows:

1. Respondent is an employment agency which provides construction personnel, helping contractors control their costs while delivering high-quality construction work.

2. Complainant was an agency worker directed to work for one of the Respondent clients.

3. Respondent client requirements for agency work diminished greatly as the site in Clonee was nearing full completion and as a result Complainant was laid off on 26 May 2023. It was Respondent expectation that a workplace would be secured in the near term with some of the other Respondent clients.

4. Complainant served form RP9 on 28/06/2023. Respondent completed part C of the form on 30/06/2023 and served it on Complainant indicating that the company expects to be in a position to offer employment to him within next 4 weeks.

5. On 28/06/2023 Respondent emailed Complainant advising in respect of job offers in Kilkenny, Drogheda and Greystones. Respondent also indicated that would respect the request to communicate only by email although in the past Respondent representatives spoke to Complainant over phone and WhatsApp communicator on multiple occasions.

6. Respondent replied that the offers are “not convenient” to him and also indicated the locations are too far, commute time will be too long and offers are not suitable.

7. On 30/06/2023 offer of employment as general operative in housing development in Kilkenny was again offered to Complainant with possible immediate start. It indicated it has a potential to develop to supervisory roles and it was on identical financial package.

8. On 18/07/2023 another offer was made to Complainant. It was a general operative/handyman role in Greystones.

9. On 19/07/2023 a Traffic Marshal position was offered to Complainant in Dublin 15. The offer was based on the fact Complainant had required CSCS training.

10. Sections Section 7 (2)(a) and (b), 12, 13 and 15 were cited.

11. Respondents submits that the Complainant is not entitled to redundancy for refusal to accept alternative employment so in circumstances where there was available in place where the complainant was “so employed”.

12. Before the offers presented by the Respondent to the Complainant are considered it is submitted that the following relevant factors shall be considered when the reasonableness of the offers is being considered:

a. Respondent is an employment agency providing personnel to third parties. Therefore, Complainant shall be seen as agency worker- an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency. That implies that by the very nature of the employment as an agency worker there might be and in it reasonable to expect- different location where Complainant might be offered employment/ directed to work. Furthermore, while performing work agency, employee (so Complainant herein) will be naturally under direction and supervision of such client (hirer of agency work) who may decide within the scope of such supervision what role/tasks are assigned to such agency worker.

b. The Termes of Engagement between Complainant and Respondent clearly indicate that due to nature of the business the place of work will vary and the duration depends on how long labour skills match the labour requirements of clients of the Respondent. Therefore, it was a term of the employment that Complainant may work at different locations (the place of work will very) and may work for different clients of the Respondent. It also confirms that there might be different skill sets required by different clients (hirer of the agency work).

It is clearly a double factor determining where Complainant was so employed. Due to the character of his contractual relationship with the Respondent, Complainant was agency worker whose place of work where he was so employed depended on the needs/requirements and location of hirers of the agency work/clients of the Respondent.

13. It is submitted that Complainant acknowledged receipt of those Terms of Engagement. It is also submitted that Respondent was fully aware that there might be different locations and different roles available to him via such agency work with Respondent.

14. It is submitted that not only there was no redundancy situation by the fact that there was work available (after a period of lay off) but also reasonable offers of employment were made to the Complainant. Objectively it was offer of very similar if not identical employment with other clients of Respondent on different construction sites. Furthermore, the nature of the construction business in which Complainant pursues his employment career, by its very nature implies change of place where work is being performed as the location of the construction sites changes once the construction process is completed.

15. It is further submitted that the offer was on same pay level/pay package and it was indicated to the Complainant to consider the offer that was made as the role has potential of development. The offer therefore was clearly a reasonable offer of further employment if same is considered objectively. It was a similar offer previously accepted by the Complainant where subsequently due to control and supervision of the hirer of agency work/Respondent client, the Complainant was assigned some type of supervisory duties which however did not affect the pay levels.

16. When the offer is considered from the Complainant personal perspective, it is submitted that all Complainant indicated that he “could not accept the offer” and subsequently clarified that he “required a supervisor role” and that he require a location that facilitates the fact he does not have a driving licence and therefore depends on public transport.

17. The Act cited herein does not require the Respondent employer to provide identical offer (the same offer) of alternative employment. The law requires that the terms and conditions of employment would not differ. It is submitted that it was offer in construction, as general operative with a potential of development with identical financial package and therefore it did not differ from the current terms of contract. It was therefore an offer of alternative suitable employment within the meaning of the act and withing the scope of Complainant contract of employment as agency worker.

18. Respondent relies on UK case Stevenson v Tees-side Bridge and Engineering Limited. In this case Mr Stevenson, steel construction worker refused an alternative offer of employment on another location, not due to its location/distance from home but because he thought the opportunity of earning overtime was not good. Similarly in the instant case the Respondent did not refuse the role offered to him not only due to distance but clarified that he needed “supervisor role”. It is submitted it makes his case even weaker when compared to the case law relied herein, as in the Stevenson case the employee refused the offer (and was subsequently dismissed for not showing up at work as a result and same was upheld in court) on subjective view he will not earn sufficient in his opinion overtime. In this case Complainant was offered exactly same financial package.

19. Notwithstanding same it is submitted that Complainant was offered work, based on his skills and training he underwent, as a Traffic Marshall within less than 6km from his home. That distance required 22 minutes commute time by public transport- a timeframe that is a dream to an ordinary worker in this jurisdiction who travels either by car or public transport within the Dublin commuter belt. It is not unusual, and Complainant must be realistic, that people in those days commute even two hours to their work. The offer of work in the outskirts of Dublin 15, close to Dunboyne was made within the 4-week period indicated in Section C of the Form RP9.

20. Finally, it is submitted that the Section 15 (2A) of the Act allows the Complainant to verify the suitability of the offer that was presented to him and still protects his rights. It is therefore submitted that a reasonable employee would have verified the offer presented to him and therefore by failing to do so Complainant unreasonably refused the offer. It is Respondent experience with agency workers that it is common that agency workers often share car and costs of attending various work locations. It was open to Complainant to test same as the law allows in respect of the other job offers presented to him.

21. Complainant herein is not entitled to redundancy for refusal to accept alternative employment.

No witnesses were called by the Respondent.

The Respondent is a registered and licenced Employment Agency. The Complainant was employed by the Respondent from the 15th of November 2026 and was deployed to various construction sites throughout his employment until he was laid off due to the closure of the site on which he had been deployed. He had worked on that site for the previous three years.

The Complainant served a statutory form RP9 on the Respondent on the 30th of June 2023 seeking the payment to hm of a redundancy lump sum pursuant to the Redundancy payments Acts. Pursuant to Section 12 of the Redundancy payments Acts an employee becomes entitled to claim redundancy where:

[Subsection (1))

“(a) He has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the layoff or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a )and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall ,for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.”

It was not disputed that as of the date of service of the RP 9 Form, the Complainant, by reason of the duration of his lay-off, had acquired an entitlement to seek a redundancy lump sum. However the right of an employee to a statutory lump sum pursuant to Section 12 is qualified by Section 13 which states (where relevant to the present case) as follows:

“13.—(1) Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

(2) Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.”

A counter-notice as required by Section 13 subsection (2) was served by the Respondent employer on the 30th of June 2023 which was within the prescribed 7 days of the date of service of the RP 9.

The offers made by the Respondent to the Complainant on the 30th of June and the 17th and 18th of July 2023 were all within the four-week period starting on the date of service of the RP 9 as contemplated by Section 13 subsection (1). The central point of dispute between the parties which I must determine is whether, arising from those offers and their refusal, the Complainant became disentitled to a redundancy lump sum pursuant to Section (15).

Section 15 provides for a general disentitlement to a lump sum in the following circusmstances:

15.—(1) An employee shall not be entitled to a redundancy payment if —

(a) his employer has offered to renew that employee’s contract of employment or to re-engage

him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and

place in which he would be employed and as to the other terms and conditions of his

employment would not differ from the corresponding provisions of the contract in force

immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of the

termination of his contract, and

(d) he has unreasonably refused the offer.

(2) An employee shall not be entitled to a redundancy payment if—

(a) his employer has made to him in writing an offer to renew the employee’s contract of

employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and

place in which he would be employed and as to the other terms and conditions of his

employment would differ wholly or in part from the corresponding provisions of his contract

in force immediately before the termination of his contract,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of

[the termination of his contract], and

(e) he has unreasonably refused the offer.

(2A) Where an employee who has been offered suitable employment and has carried out, for a

period of not more than four weeks, the duties of that employment, refuses the offer, the

temporary acceptance of that employment shall not solely constitute an unreasonable refusal

for the purposes of this section.

Pursuant to this provision, the entitlement to a redundancy lump sum is defeated in two situations:

Firstly, as envisaged by Subsection (1) where the employer offers to re-engage the employee on the same or a new contract and the terms are the same

Or

Secondly, as envisaged by Subsection (2), where even if the terms would differ wholly or in part as regards the capacity and place of employment and as to the other terms and conditions, the offer made is one of ”suitable employment in relation to the employee”.

In addition to an offer meeting the requirements of either subsection (1) or subsection (2) it must also be established that the employee to whom the offer was made “has unreasonably refused the offer”.

In the present case, none of the offers made related to the same conditions of employment in that each offer constituted either a different location or different duties such that Subsection (1) is not engaged. The offers related to different terms of employment as contemplated by Subsection (2). In such circumstances, for the Complainant to be deemed disentitled to a redundancy, it must be shown that the offers (or any of them) made by the Respondent constituted “suitable employment” “in relation to” the Complainant and that his refusal of those offers was unreasonable.

Three offers were made to the Complainant.

On the 28th of June 2023 he was offered an immediate start (the next day) on a large housing development site in Kilkenny with long term work and with “the same rate of pay and conditions” [as his pre-lay-off position. It was indicated to the Complainant that similar work was also available in Drogheda and in Greystones.

The Complainant rejected the offer in an email sent the same day stating that the jobs were not convenient for him. He stated: 

“When I first joined the company, it was made known that I do not possess a driver’s licence and this is true to this day. All opportunities you have presented to me require a minimum of two hours on public transport each way. This doesn’t fall under the ‘same conditions’ description of the job(s)”.

Also, I would like to keep my previous role of supervisor, a position I held for the past three years”

On the 18th of July 2023 a General Operative/Handyman position in a new housing development in Greystones stating the next day was offered. The Complainant refused this position by email on the same date stating:

“As I have already mentioned to Richard and Philip, I cannot accept any role from this company unless it is the same position I have held for the past 3 years: a supervisor” 

The Respondent replied, later that day, stating:

“We are obliged to odder reasonable employment which is suitable. The offers we put to you are fulfilling those criteria considering all the specifics of agency work and positions on constructions sites which are naturally subject to change in terms of location and client involved and the structure client puts in place on those sites”  

The Respondent replied later that same day: 

“I cannot see how these jobs are reasonable. Firstly you know I live in Dunboyne and that I do not drive, yet you are offering me work in Greystones which is about 2 and a half hours from me, using public transport. As I have mentioned several times before, I want to keep my supervisor position which I have held for the past three years and which I am also entitled to by law”.

On the 19th of July 2023 a third offer was made which was due to start on the 24th of July 2023. The position was described as Traffic Marshall at a location in Hansfield (a location relatively close to the Complainant’s residence in Dunboyne). It was noted that the position required a particular certification which the Complainant possessed and was still valid. The Complainant replied the next day, the 20th of July 2023 stating:

“Thank you for the offer but I must decline. I have mentioned that unless the role is that of a supervisor, or a role which is equal to that, I cannot accept.” 

In his evidence, the Complainant said that he refused the first two offers, the first based in Kilkenny and the second based in Greystones County Wicklow, because of the travel commute distance. He lives in Dunboyne where he owns his home. He does not drive, and he said that the Respondent was aware of this fact. It was put to the Complainant that when he started to work for the Respondent in 2016, he lived in Clonsilla but that he then moved to Dunboyne in 2019 and so he could have moved again to be closer to the work offered. The Complainant did not accept this as reasonable as Dunboyne is his permanent residence where he owns rather than rents his home.

It was put to the Complainant that the essential nature of his work with an Employment Agency such as the Respondent was that it required flexibility in relation to where the Complainant would work. It was put to the Complainant that his employment was governed by a document entitled “Terms of Engagement” which contained two clauses, highlighted by Mr. Boino, the Respondent’s solicitor. These clauses provided that the Complainant’s place of work will vary and that he was responsible for getting to the place of work. A further term provided that the duration of the employment was from day to day as long as the Complainant’s labour skills could be matched to the labour requirements of the Respondent’s clients. The Complainant was unsure as to whether he had signed this document. His recollection was that he had a signed a document in 2016 but he thought that this was given to him by the company which operated the site where he was deployed at the time.  A signed copy was not produced by the Respondent. The Complainant contended that he was not bound by the document. He maintained that he had worked continuously at the same site for the previous three years prior to his lay-off and during that time he said that he was carrying out supervisory functions and that his duties and responsibilities were comprehensive and involved many aspects of the work on the construction site.

It was put to the Complainant that the Greystones job would have developed into a supervisory role. The Complainant’s counsel submitted that there was no evidence to support this assertion. 

In relation to the third offer, the Complainant, in his evidence said that he did have the necessary certification to do this work. However, he acquired this certification incidentally to his other work when he assisted some colleagues to attend the course necessary to obtain the certification, more because he was helping those colleagues to understand English than because he needed or wanted the certification himself. He said that he did not want to be a Traffic Marshall. He does not like standing for the entire day and working alone as he prefers to work with others. He contended that his role was that of a general operative which had extended to the supervision of other workers (numbering between 12 and 16 individuals) and that he had carried out a wide variety of tasks on the construction site. He did not want to take a position where his duties would be restricted to those of traffic marshalling only.

Mr. Boino Solicitor, for the Respondent, submitted that an employee is obliged to make enquiries concerning the details of a post-lay-off job offer. He relied on Section 15 subsection 2A as authority for this proposition. My interpretation of the wording of subsection 2A is that its purpose is to permit the employee to “try out” the job as offered for a period not exceeding four weeks without losing his/her right to reject the offer if he does so before those four weeks expire. Thus, carrying out the duties of the new role cannot be deemed an acceptance of the offer unless the employee continues to carry out the duties beyond four weeks. The provisions do not create a positive obligation on an employee to accept the offer on a trial basis but rather permits him/her to do so for a period not exceeding four weeks without being held to have accepted the position. Mr. Boino also made a more general point that the Complainant should at very least have enquired further about the third position offered. The Complainant said that he did do so, and he made telephone contact with named individuals in the Respondent’s organisation. The Respondent did not rebut this evidence.

The term “suitable employment in relation to the employee” must be decided in each individual case specifically by reference to the employee concerned. Moreover, the issue of unreasonable refusal is an additional issue which must be established even where the employment offered is suitable. Case law is of limited assistance insofar as very few, if any two cases will be exactly similar.

The Complainant’s counsel cited the E.A.T. decision in Joyce v. Duffy Meats Limited RP442/2008

In that case the Employment Appeals Tribunal found that

“the appellant was not unreasonable in refusing to accept the third alternative employment, as the nature of the work offered was as a cleaner and was materially different to that of a production operative for which he had originally been employed”

The Respondent relied on the decision of the Queen’s Bench Division of the U.K. High Court in Stevenson v. Tees-side Bridge and Engineering Ltd [1971] 1 All ER 296. In that case the employee was employed by a steel fabricator business. The Industrial Tribunal ruled against his claim for redundancy when he had refused to travel to another site in England which was not close to his home, after the available work on the site he had been working on was due to end. The employee appealed to the High Court. There was no express clause in his contract but there was evidence, which the Court accepted, that the employee was specifically asked, and he confirmed when he was recruited, that he was prepared to work away from home. Moreover, the view was taken that it was commonplace in the steel fabrication industry that steel fabricators would routinely travel as directed in accordance with the work available. It was also noted that travel and related expenses were paid to workers pursuant to the terms of employment. The worker in question lived in Leyland in Lancashire and had worked in Kirby in Liverpool which was within ”travelling distance” of his home. The sites to which he was to be transferred were in Blythe in Northumberland. The reason given by the employee according to the leading judgement in the case was “not…on the ground that he was not employed to go there, but on the basis that he thought that the opportunity of earning overtime was not good. He said in effect that he would have gone if, as he put it, the money had been right” [1971] 1 All ER 296 per Lord Parker CJ at p 297. The decision in the case was to the effect that the employee was contractually obliged (by way of an implied term) to work where he was directed and arising from his refusal to accept the offers to work in other locations his resultant dismissal did not entitle him to a redundancy payment.

The extent to which the actual reason given by the employee for the refusal to accept the offers (being financial rather than locational) is not entirely clear from the judgment save to say that the reason is recited at the commencement of the leading judgement. It is also clear from the judgement that three other similar cases had succeeded but that a line was drawn with the case before the court as the facts were stronger in favour of the employer, especially the fact that the employee had been specifically asked and he confirmed that he would travel with the work and that he would not have been recruited otherwise. The decision is not on all fours with the facts of the present case where location was an issue for the Complainant in relation to the first and second offers as he did not drive, the Respondent was aware of that fact, and he would have faced a long commute on public transport. Also, there was no provision in the Complainant’s contract for the payment of travel and related expenses.  In relation to the third offer, the issue for the Complainant was the nature of the work which, he contended, was quite different to that which he had done for most of his employment with the Respondent. In neither case, unlike apparently in the Stevenson case, was there any issue with overtime or remuneration. 

I would again reiterate that caution must be exercised in this particular area of the law in adopting precedents from other case where the assessment of what is “suitable employment” must be made by reference to the employee concerned, and thus the facts of each individual case must be considered separately. Even if this were not so, I am not bound by either decision as cited by either party but I do find the logic adopted by the E.A.T in Joyce v. Duffy Meats Limited of some assistance in that the issue on which that decision turned was the fact that the nature of the employment offered was materially different to the work which the employee in that case had previously carried out.

In the present case I find that even if the Terms of Engagement document and the nature of the work, (being agency work where the employee must follow the work) would not preclude the offer of work in other locations, I must take account of the individual circumstances of this particular employee. This particular employee had worked on the same site, which was within reach of his home, continuously for three years prior to the lay-off. He did not drive and this was known to the Respondent and in his particular case, I find that even if the work offered was suitable, the length of the commute by public transport, which would have been required by this particular Complainant, was such that his rejection of the first and second offers cannot be deemed unreasonable and thus Section 15 (2) does not apply and the Complainant’s refusal of those offers does not disentitle him to a redundancy lump sum 

I accept the Complainant’s evidence, which was not challenged, that in the course of his three-year deployment which immediately preceded the lay-off, he carried out supervisory duties and that his work was varied and involved many different duties. As regards the offer of the position of Traffic Marshall, there was no evidence that this position involved or would have evolved to include any further or other duties or responsibilities beyond those of Traffic Marshall. Although his emails did not specify the precise reasons for the objection, the Complainant said in his evidence that he did not want to do this job as it involved standing in a single location for the whole day, that it did not involve working with others and had no supervisory role. Even though, as was correctly pointed out by the Respondent’s solicitor, these specific objections were not set out in the email refusing the position, the Complainant gave evidence that he did discuss these issues directly with two named individuals in the Respondent and in the absence of any evidence in rebuttal from those individuals, I accept as a fact that the Complainant’s discussions with these individuals did take place and that the issues with the job (which were given in evidence at the hearing if not set out in the email rejecting the offer of that job) were conveyed to the Respondent. I further find that the restrictive duties and functions of the role offered were not analogous to those which the Complainant had carried out for the three-year period prior to his lay-off and indeed for the majority of his service with the Respondent in other locations, which involved a variety of tasks on the site where he worked, and which included at least an element of supervision. There was no evidence that the duties of Traffic Marshall went beyond that role or that they would have or could have evolved further and the mere fact that the Complainant was qualified to do this type of work does not in itself establish that it was “suitable employment”. I find that it was not “suitable employment” within the meaning of that term in Section (15), and for that reason its refusal by the Complainant does not engage the disentitlement provisions provided for in that section.

In all of the circumstances I find that the offers made to the Complainant by the Respondent do not meet the requirements provided for in Section (15).  I am therefore satisfied that the Complainant is entitled to a redundancy payment based on having had insurable employment (under the Social Welfare Acts) for the duration of his employment based on the following facts:

Commencement Date: 15th November 2016

End of Employment: 26th May 2023

Gross weekly pay: €850 per week (subject to statutory maximum)

CA-00058166-001

A Redundancy Lump sum award should be made to the Employee/Appellant/Complainant based on the following details:

Commencement Date: 15th November 2016

End of Employment: 26th May 2023

Gross weekly pay: €850 per week (subject to statutory maximum)

Redundancy Payments Act 1967 (as amended) – Section 12 - Section 13 - Section 15 - Section 15 (2A) – Lay-off – Form RP9 served – Counter-notice served – whether offers of employment “suitable employment” – whether Complainant unreasonably refused offers of alternative employment-  Joyce v. Duffy Meats Limited RP442/2008 - Stevenson v. Tees-side Bridge and Engineering Ltd [1971] 1 All ER 296