EAT Unfair Dismissal: Reason for Dismissal Including Substantial Other Reason – UNFAIR DISMISSAL – Reasonableness of dismissal
REDUNDANCY – Definition
REDUNDANCY – Fairness
Reason for dismissal – unfair dismissal – statutory redundancy payment
Fairness of dismissal – unfair dismissal
Both Claimants were dismissed after the Respondent took the decision to close down the workplace in which they were both employed and sought to invoke a contractual mobility clause: the Claimants had refused to relocate in accordance with the Respondent’s instruction and it had taken the decision that they should be dismissed.
The Claimants pursued claims before the ET, relevantly claiming unfair dismissal and statutory redundancy payments. Their cases were heard separately but by the same Employment Judge, who ruled that they had been dismissed by reason of redundancy, the closure of the workplace constituting a redundancy for the purposes of section 139 Employment Rights Act 1996 (‘ERA’), and were therefore entitled to statutory redundancy payments. The ET also found the dismissals to have been unfair, whether by reason of redundancy or, as the Respondent had argued, for conduct or some other substantial reason (‘SOSR’).
The Respondent appealed.
Held: allowing the appeal against the ET’s decision on the statutory redundancy payment claims but dismissing the appeal against the decision on unfair dismissal
The ET had wrongly approached the question of the reason for the dismissals from the perspective of there having been a redundancy situation within the definition of section 139 ERA when it had found that the reason in the Respondent’s mind was related to the Claimants’ refusal to obey the instruction to relocate, issued in reliance on the mobility clause which featured in their contracts of employment. Whether or not there was a redundancy situation, the ET still had to approach the question of the reason for the dismissal applying the test laid down in Abernethy v Mott, Hay and Anderson [1974] ICR 323 CA. Doing so, it was apparent (on the ET’s findings) that the reason in the Respondent’s mind was one related to the Claimants’ conduct – the refusal to obey the instruction to relocate – and the Respondent had been entitled to rely on that reason notwithstanding the background of the workplace closure (Curling and Ors v Securicor Ltd [1992] IRLR 549 EAT and Home Office v Evans [2008] ICR 302 CA applied). The ET’s finding on the Claimants’ entitlement to statutory redundancy payments could not stand, and the appeal would be allowed in this regard.
That said, in both cases the ET had gone on to consider the question of fairness in the alternative. In so doing, it had applied the three stage test identified by the Respondent, asking (1) whether the instruction was lawful (whether the mobility clause relied on was contractual), (2) whether the Respondent had acted reasonably in giving that instruction, and (3) whether the Claimants had acted reasonably in refusing to comply with that instruction. It had concluded that the mobility clause was too wide and uncertain, had been unreasonably invoked by the Respondent and that the Claimants (both faced with an additional 20-30 hours’ commute each week, and given that Mr Fitton had brought a property near to his former workplace and did not have a car, and that Mr Ewer had worked near to his home town for the Respondent/its predecessor for 25 years, would soon be 64 and due to retire a year later) had reasonably refused to comply with the instruction. As the ET had applied the tests identified by the Respondent in its alternative, ‘conduct’ findings, had reached permissible conclusions on the material before it, and had provided adequate Reasons, there was no basis for overturning the decision on fairness, and the appeal in this regard was dismissed.
Citations:
[2016] UKEAT 0206 – 16 – 2111
Links:
Jurisdiction:
England and Wales
Employment
Updated: 29 January 2022; Ref: scu.573469
