The next step

To the EAT's ruling in the case mentioned in the article

[]

When does a redundancy situation arise?

Fact of the case

In Exol Lubricants v Birch and another 2014 , Birch (B) and Perrin (P) had both been employed as HGV delivery drivers by Exol (E) (see The next step ). Both men lived in Manchester but the depot to load up their HGVs was located in Wednesbury, roughly 70 miles away. B and P’s employment contracts stated that their “normal place of employment” was the Wednesbury depot.

Parking arrangements

However, to help minimise their personal commuting costs, E subsequently agreed to provide secure overnight parking for B and P’s allocated HGVs near to their homes. Both men drove their personal vehicles from their home addresses to the secure parking area each day and were paid for these journeys (which were treated as part of their working day). All of the other HGVs that E utilised were parked overnight at the Wednesbury depot.

Cutbacks

Although this was agreed to be a contractual entitlement, some time later E decided it could no longer afford to pay for the secure overnight parking for B and P. It notified them both that it was terminating the arrangement. When the parties failed to reach a compromise over a possible solution, E decided to dismiss B and P. The reason it gave for this decision was “redundancy”. Both men then claimed they had been unfairly dismissed and, following an appeal by E, the case ended before the Employment Appeal Tribunal (EAT).

No longer required

E argued that this was, indeed, a redundancy situation - as opposed to an unfair dismissal - because B and P’s normal place of work was actually Manchester (not Wednesbury) and, as it no longer wished them to keep their lorries parked there overnight: (1) its requirement for lorry driving in Manchester had diminished; and (2) it was no longer carrying on a business there.

Nice try, but no

The EAT said that when determining the place of work there are two issues which must be considered - the provisions contained in the employment contract and any connection an employee may have with another location, e.g. a depot or a head office. In this case, the Wednesbury depot was where B and P took their instructions from, began and ended their working day and had to take their lorries for loading.

Ludicrous. Suggesting that their normal place of work was a car park somewhere in Manchester which E didn’t operate any business from was nonsense. Therefore, the dismissals did not meet the statutory test for redundancy.

Tip. For it to be a genuine redundancy situation, the employment must be terminated because of, or mainly due to, the employer: (1)  closing its entire business (2) closing the employee’s workplace; or (3) having a lesser need for an employee to carry out work of a particular kind. None of those situations had arisen in this case.

For the EAT’s ruling in this case, visit http://tipsandadvice-business.co.uk/download (CD 16.10.06).