Dismissed employee should be made redundant

Dismissed employee should be made redundant – Kellogg Brown & Root (UK) Ltd v Fitton and Ewer has confirmed that the two employees had been dismissed for redundancy when their employer had purported to exercise a mobility clause to move them to another office when their office closed.

Facts –

Kellogg Brown, an engineering, construction and technology services company, had offices in Greenford and Leatherhead (a distance of just over 35 miles between the two offices). Both Mr Fitton and Mr Ewer worked within the Greenford office. Kellogg relied on a mobility clause within the employees’ contracts providing that employees may be required to work at a different location including anywhere within the UK or overseas unless exceptional circumstances prevailed.

Kellogg closed the office in Greenford, and every employee, except those with exceptional circumstances (such as childcare and caring responsibilities) were instructed to move to Leatherhead. Those with exceptional circumstances were made redundant and received a redundancy payment. Mr Fitton did not have an exceptional circumstance and his refusal to move to the Leatherhead office could lead to dismissal for refusal to comply with the employment terms.

Kellogg instructed Mr Fitton to move to the Leatherhead office and if he did not, his non-attendance would be treated as unauthorised, unpaid absence and investigated under its disciplinary process. Mr Fitton did not attend the Leatherhead office on the basis that he was not prepared to travel two hours each way to get to the Leatherhead office and he was subsequently invited to a disciplinary hearing for alleged unacceptable conduct and was dismissed. Mr Fitton tried to appeal this decision however it was unsuccessful.

Mr Ewer who was approaching retirement age and lived in St Albans, and as a result of the move to the Leatherhead office would be required to travel an additional 29 miles each way. Mr Ewer requested redundancy which was refused. Mr Ewer was also invited to a disciplinary hearing for alleged unacceptable conduct and was dismissed. Like Mr Fitton, Mr Ewer’s internal appeal was unsuccessful. Both parties issued proceedings for unfair dismissal and a statutory redundancy payment.

Whilst the cases were dealt with separately by the same Judge, the same conclusion was reached. It was held that both Mr Fitton’s and Mr Ewer’s place of work was Greenford. The instruction to work in Leatherhead had been unreasonable given the greatly increased travelling. The dismissals were held to be unfair.

Kellogg appealed the decision.

The Employment Appeal Tribunal still held that the dismissals were unfair and it was not unreasonable for the parties to refuse to move to the Leatherhead office due to the increased travel time.

Comments

This case has not provided a change in law, but it has provided some guidance for employees to recognise when a company is attempting to dismiss a person when they should be made redundant. The mobility clause within a contract needs to be carefully drafted in order for it to be relied upon. In this instance, it was held to be too vague and uncertain for Kelloggs to rely upon it.

IMPORTANT: This blog is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

For further information on a dismissed employee or any other employment related matters please contact Rupert Farr on: 020 7952 6216 or rupert.farr@blaketurner.com, Fenchurch St Lawyers