EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other
The Claimants were employed as delivery drivers using HGVs. They lived in Manchester but the Respondent depot they had to attend to load up was situated in Wednesbury. Their contracts stipulated that their place of employment was in Wednesbury.
The cost of commuting each day in their transport was too great for the Claimants and in order to accommodate the Respondent agree to make available secure parking for their HGVs in Stockport near their homes. They would drive from their homes to Wednesbury each day and the journey to and from Stockport was treated as part of their working day for which they were paid. It was accepted that this arrangement had become a term of their contracts of employment. All the other HGVs were parked overnight at the depot in Wednesbury. A time came when the Respondent felt it could no longer afford to pay for the secure parking in Stockport and gave notice to the claimants that it was terminating the arrangement. The parties were not able to agree on a compromise that would enable the claimants to commute to Wednesbury each day without having to use the secure parking in Stockport.
The Respondent therefore determined in the absence of agreement to dismiss the Claimants. Initially the proposed ground was SOSR but in the event the reason for dismissal was redundancy.
The Respondent sought to argue that there was a redundancy situation because the basis that Stockport was the Claimants’ place of work rather than Wednesbury. The Respondent had sought to argue that as the Respondent no longer wished the Claimants to keep their lorries at Stockport, its requirement for lorry driving in Stockport had diminished and the case was therefore within the meaning of section 139 (1)(a)(ii) of the Employment Rights Act 1996. Employer ceasing ‘to carry on . . business in the place where the employee was . . employed’. Therefore there was a redundancy situation. The Employment Tribunal rejected the Respondent’s case on the basis that the Claimants’ place of work was not in Stockport but in Wednesbury because that was where their working day began and ended.
The Employment Appeal Tribunal upheld the decision. It derived the following propositions from the authorities as to the meaning of the phrase ‘the place where the employee was . . employed’.
1. In cases of someone like a delivery driver, who has no fixed place where he carries out his duties, in determining the place where he was employed within the meaning of section 139, it is proper but by no means conclusive to have regard to the contractual provision.
2. It is appropriate to consider, depending on the facts of the case, any connection he may have with a depot or head office or something like that.
Both of those matters were highly relevant in the instant case. The Claimants both had a close connection with the Wednesbury depot. That is where they had to take their lorries every day to be loaded and that is where their instructions came from and to where they reported.
Serota QC HHJ
[2014] UKEAT 0219 – 14 – 1311
Bailii
England and Wales
Employment
Updated: 27 December 2021; Ref: scu.541539