EXOL Lubricants Ltd v Birch & Anor

For a mobile employee with no single fixed workplace, the place where the employee is employed for redundancy purposes under section 139 of the Employment Rights Act 1996 is determined from all the circumstances. The contractual workplace is relevant but not conclusive. Relevant practical connections include the depot or office which the employee must attend, where instructions are received, and where work begins.

An employer cannot establish redundancy by identifying a location used only for an ancillary contractual facility, where the employee's work and the continuing need for it remain at another depot. A dismissal advanced as redundancy cannot be justified by a different potentially fair reason which the employer did not rely upon.

The respondents were HGV delivery drivers living near Manchester. Their contracts named the employer's Wednesbury depot as their place of work. By contractual arrangement, they parked their lorries overnight at secure premises in Stockport and were paid for the journey from Stockport to Wednesbury.

The employer sought to end the parking arrangement for commercial reasons. The parties did not agree a contractual variation. The employer ultimately dismissed the drivers for redundancy. The Birmingham Employment Tribunal upheld their unfair-dismissal and breach-of-contract claims, finding that Wednesbury, not Stockport, was their place of work and that no redundancy existed.

The employer appealed. The central issue was whether the withdrawal of the Stockport parking arrangement created a redundancy situation under section 139 of the Employment Rights Act 1996.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the drivers were employed to work at Wednesbury, rather than at the Stockport car park. Its reasons were sufficient: an Employment Tribunal need not give elaborate reasons, provided that its decision explains why the parties won or lost and permits an appellate court to understand its basis.

2. For the purposes of section 139 of the Employment Rights Act 1996, the place where a delivery driver is employed is a fact-sensitive question. The contractual specification is proper, but not conclusive, evidence. The tribunal should also consider the employee's connection with a depot, head office, or similar operational base. The approach was supported by High Table Ltd v Horst, [1997] EWCA Civ 2000, and Bass Leisure v Thomas, [1994] IRLR 104.

3. Here, the contractual workplace was Wednesbury. The drivers had a close operational connection with that depot: they attended it daily to load their lorries, received instructions there, and reported there. Stockport was merely the place where they parked and started or ended their paid journey. The parking concession did not alter the place at which they were required to work.

4. There was therefore no redundancy at Wednesbury. The work performed by the drivers, and the employer's need for drivers to perform it, continued after their dismissals. The proposed withdrawal of the Stockport facility could not make Stockport the relevant place of employment. The dismissals were not for redundancy and were unfair. Although dismissal for some other substantial reason might have raised different considerations, that was not the reason ultimately relied on by the employer.

• Employment Appeal Tribunal — the employer's appeal was dismissed: [2014] UKEAT 219_14_1311.
• Employment Tribunal at Birmingham — upheld the respondents' unfair-dismissal and breach-of-contract claims; rejected the asserted redundancy reason. Citation not stated in the judgment.