Redundancy – Meaning of Place of Employment #Law #HR #Management

Daniel Barnett: When employees lost the benefit of free parking near their homes, was this a place of work redundancy? No, held the EAT in EXOL Lubricants v Birch.

The Claimants were employed as delivery drivers using HGVs. They lived in Manchester but the depot they had to attend to load up was situated in Wednesbury. Their employment contracts also stipulated that their place of employment was Wednesbury. Because of the cost of commuting, EXOL agreed to make available secure parking for the employees’ HGVs in Stockport, near their homes. They would then drive from their homes to Wednesbury and the journey to and from Stockport was treated as part of their working day, for which they were paid.

A time came when the company could no longer afford to pay for the secure parking in Stockport and so they gave notice to terminate this arrangement. The employer sought to argue that there was a fair reason for dismissal, namely redundancy, on the basis that Stockport was the Claimants’ place of work rather than Wednesbury. It therefore argued that the employer had ceased to carry on business in the place where the employee was employed. The employment tribunal rejected this proposition. The employees’ place of work was not Stockport, but Wednesbury, because that was where their working day began and ended. The EAT agreed.

The proper test in determining where the employee is employed for the purposes of the redundancy provisions of the ERA is as follows. First, it is proper (but by no means conclusive) to have regard to a contractual provision. Secondly, it is appropriate to consider, depending on the facts of the case, any connection the employee may have with a depot or head office. Here, the employees’ contractual place of work was at Wednesbury and, secondly, they had a close connection with the Wednesbury depot. There was therefore no redundancy situation at Wednesbury because the job and the need for people to do it remained. As the employer advanced no other potentially fair reason for dismissal, the dismissals were unfair.

Effective Date of Termination #HR #Management #Law

Daniel Barnett: Where the result of an internal appeal is that an employee’s summary dismissal is substituted for dismissal with pay in lieu of notice, is the effective date of termination changed? No, held the EAT in Rabess v London Fire and Emergency Planning Authority.

The Claimant was dismissed for gross misconduct on 24 August 2012. Following an internal appeal, the finding of gross misconduct was substituted for misconduct. The Claimant was already on a final written warning so the penalty remained dismissal, but the decision maker found he was entitled to six weeks payment in lieu of notice (PILON). The Employment Judge found that the effective date of termination (EDT) was 24 August 2012 and that the claim for unfair dismissal was out of time.

On appeal, the Claimant relied in particular on the absence of a contractual entitlement to PILON, which rendered it a breach of contract to dismiss the Claimant without notice unless there was gross misconduct.

HHJ Richardson held that because the EDT was a statutory construction what was important was what actually happened, not what ought to have happened contractually. He distinguishedHawes & Curtis Ltd v Arfan on the basis that in Hawes the employer had expressly altered the date on which dismissal took effect following the internal appeal.