In Kellogg Brown & Root (UK) Ltd v Fitton and Ewer, the EAT had to consider whether employees who refused to move to an alternative office when their office closed had been fairly dismissed. The case highlights the difficulties in exercising a contractual mobility clause in a redundancy situation.
Mr Fitton and Mr Ewer had brought Tribunal claim's alleging they had been unfairly dismissed. Although two separate hearings took place, both cases were heard by the same Employment Judge ("EJ"). The company had two offices, one in Greenford and one in Leatherhead. Both men were located in Greenford but their employment contracts stated that they could be required to work at a different location on either a temporary or permanent basis. A compensation scheme was to be run for the first 6 months following the transfer to Leatherhead and those affected by M25 traffic were to have an earlier finishing time.
In a redundancy situation the use of a mobility clause can avoid redundancies, and if an employee unreasonably refuses to comply they can be dismissed and lose their entitlement to a redundancy payment. Both men refused to transfer, stated they did not believe the mobility clause to be enforceable and were dismissed for what the employer said was failing to follow a reasonable instruction.
The EJ found that both men had been unfairly dismissed, that the reason for dismissal was redundancy and that by following a disciplinary procedure rather than a redundancy consultation the procedure was flawed and the dismissals unfair. He also found that the instruction to work in Leatherhead was unreasonable given the greatly increased travelling time to work and that the compensation measures and shorter working hours, while of assistance to some employees, were of no significance to Mr Fitton or Mr Ewer.
The EAT upheld Kellogg's subsequent appeal against the reason for dismissal being redundancy, holding the dismissals were for misconduct. However, they still found the dismissal to be unfair. The EJ had considered whether the instruction to move to Leatherhead had been a valid contractual requirement and had found that it had not. He had also considered if the instruction was reasonable, concluded that it was not, and whether the claimants refusal to follow it was unreasonable and concluded that it was not. In consequence of this the conduct dismissal was unfair.