19 JAN 2015
Meaning of 'place of work'
Solicitor, Veale Wasbrough Vizards
In a recent case, the Employment Appeal Tribunal (EAT) gave useful guidance for employers in establishing an employee's place of work in the context of workplace closure redundancies.
In EXOL Lubricants Ltd v Birch, Mr Birch and Mr Perrin were employed as HGV drivers for EXOL Lubricants Ltd (EXOL).Their employment contract stated that their place of work was EXOL's main depot in Wednesbury.
Although Mr Birch and Mr Perrin worked from the depot in Wednesbury, they had been allowed for several years, to park their lorries overnight at a secure parking facility near their homes in Stockport, and by common practice, this became an implied contractual term.
The parking facility was provided at EXOL's cost and Mr Birch and Mr Perrin's working hours included the time spent driving between Wednesbury and Stockport each day.
As this arrangement had become unaffordable, EXOL sought to terminate it and change the terms and conditions of Mr Birch and Mr Perrin's employment. When Mr Birch and Mr Perrin refused to agree to the change, EXOL dismissed them by reason of redundancy.
EXOL sought to argue that Mr Birch and Mr Perrin's place of work was Stockport, where EXOL had ceased to carry on business, thereby resulting in a workplace closure. Mr Birch and Mr Perrin brought claims for unfair dismissal on the grounds that there was no redundancy situation because their place of work was Wednesbury, not Stockport.
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The Employment Tribunal (ET) agreed and determined that, based on the contract of employment and the employees' close connection with the Wednesbury depot, their workplace was EXOL's depot in Wednesbury. Given that there was no diminution in EXOL's requirements at the Wednesbury depot, there was no redundancy situation and Mr Birch and Mr Perrin had been unfairly dismissed.
EXOL appealed but the EAT upheld the ET's decision.
The EAT's decision offers useful guidance for employers who engage mobile employees.
In order for redundancy to be a potentially fair reason for dismissal on the grounds of workplace closure, an employer will first need to determine the employee's place of work. The provisions of the employment contract can be an indicator of the employee's likely workplace, but the context of each individual employee must be considered. Where the employee moves between workplaces regularly, any connection the employee may have with a depot or head office also needs to form part of the assessment.
This case also serves as a useful reminder for employers to carefully consider the real reason for a dismissal. In this particular set of circumstances, the dismissal may have been fair if the employer had argued that it was for some other substantial reason and followed a process suitable for a business re-organisation or change of terms and conditions.