Fixed place of work

Tribunals can find a dismissal is fair for redundancy if the employer can show that they ceased to carry on their business in the place “where the employee was so employed”. In Exol Lubricants Ltd v Birch and Perrin, the Employment Appeal Tribunal (EAT) held that, for employees with no fixed place of work, tribunals must look at the contract and also whether the employees had a connection with a depot or head office.

Basic facts

Mr Birch and Mr Perrin worked as lorry drivers for Exol. All the company’s heavy goods vehicles were garaged at their depot in Wednesbury, except for the lorries driven by the claimants. Although their contracts stated that they were based at the depot in Wednesbury, the employer allowed them to park in secure parking at Stockport, which was nearer their homes in Manchester. This had become a term of their contract.

The company wrote to the men in September 2012 stating that the secure parking was costing too much and was not consistent with the conditions of employment of the other drivers. It would therefore be withdrawn at the end of the year. After some fruitless negotiations, the company terminated their employment in January 2013 on the basis of redundancy under section 139 (1)(a)(ii) of the Employment Rights Act 1996. In particular, the company argued that Stockport was the men’s place of work and that its requirement for lorry driving at the site had diminished.

The two men claimed unfair dismissal and breach of contract.

Relevant law

Section 139 (1)(a)(ii) states that an employee is dismissed by reason of redundancy “if the dismissal is wholly or mainly attributable to the fact that his employer has ceased or intends to cease carrying on that business in the place where the employee was so employed”.

Tribunal decision

The tribunal held that this did not constitute a redundancy situation. There was no diminution in the company’s requirements for employees to carry out work of a particular kind done by the two claimants, not least because agency drivers were engaged as soon as the claimants’ employment was terminated.

It held that their place of work was the Wednesbury depot, as expressly stated in their contracts. It was also a term of their contracts that they would be provided with secure overnight parking facilities at Stockport, but it was not and never had been their place of work. The company appealed.

EAT decision

The EAT held that the meaning of the phrase “the place where the employee was … employed” should be decided in the case of delivery drivers (who have no fixed place where they carry out their duties) by looking at what the contract states; and whether they had any connection with a depot or head office.

In this case, the men’s place of work was Wednesbury, not Stockport, as that was where they started their delivery routes. That was also what their contracts said. Although they were allowed to park the lorries overnight in Stockport, as a concession, their place of work did not change.

There was no redundancy at Wednesbury, where the claimants were employed to work, because the job that they did and the need for people to do it remained. The EAT concluded, therefore, that their dismissal was not by reason of redundancy and it was in the circumstances unfair.