The employees, in this case, had mobility clauses in their contracts of employment which stated:
"The location of your employment is … but the company may require you to work at a different location including any new office location of the company either in the UK or overseas either on a temporary or permanent basis. You agree to comply with this requirement unless exceptional circumstances prevail."
The employer decided to close one of its offices due to workload and office capacity. Employees at that office were told that they were transferring to another office. To allow for additional travel costs the employer operated a six-month compensation scheme. It also proposed a reduction of core times with an earlier finish for those affected by M25 traffic.
A number of employees with childcare and elderly parent caring responsibilities left under ‘exceptional circumstances’ and received a redundancy payment.
One of the employee’s, in this case, refused to transfer as it would mean that his commute would be two hours each way rather than 20 minutes.
The other employee refused to transfer on the basis that he was 64 years old and after 25 years service and approaching retirement he should be easing off daily stress rather than turning a daily commute of 18 miles each way into one of 47 miles each way.
Both employees were dismissed for unacceptable conduct.
They then brought tribunal claims for unfair dismissal and a statutory redundancy payment, which they won.
On appeal the Employment Appeal Tribunal said that the tribunal had been wrong in finding that the employees had been dismissed for redundancy. The employees, it said, had been dismissed for alleged misconduct, namely for refusing to comply with a reasonable instruction under their contracts. However, it went on to say that the dismissals had been unfair. This was because the employer’s instruction to move to the other office had not been reasonable and the employees had reasonable grounds to refuse.
Case reference: Kellogg Brown & Root Limited v Fitten and Ewer