In Kellog Brown & Root (UK) Ltd v (1) Fitton and (2) Ewer, the employer was found to have unfairly dismissed two employees when it sought to rely on contractual mobility clauses to relocate them from Greenford to Leatherhead instead of making them redundant.
Mr Ewer had worked for Kellog Brown & Root (KBR) for 25 years and Mr Fitton had worked for KBR for 11 years. Both worked in its Greenford premises. In 2015, KBR decided to close its Greenford premises and relocate all employees based there to Leatherhead. For Mr Fitton, this meant his 20 minute commute each way would increase to 2 hours each way. For Mr Ewer, who turned 65 in 2015, his commute increased from 18 miles each way to 47.
Both had a clause in their employment contracts stating, "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." KBR said that as a result of that clause, their roles had not become redundant because it was entitled to require them to relocate.
During the consultation process, the employees said they should be made redundant, referring to the added difficulty of their commutes and length of service and Mr Ewer said that in his final year of employment he should be easing down, not being put under greater pressure. In response KBR said that it had consulted with staff and put in place various provisions to mitigate the effects of extended commuting times (for example flexible working, adjusting core hours and providing financial assistance).
KBR therefore said that it was entitled to enforce the mobility clause. It said that age and service were not 'exceptional circumstances' under the last line of the clause. It appears that KBR did treat some employees with childcare commitments or elderly parents as being in exceptional circumstances and dismissed them with the equivalent of a redundancy payment.
When Messrs Fitton and Ewer refused to move, they were invited to disciplinary meetings and dismissed for misconduct for refusing to comply with a reasonable instruction.
The Employment Tribunal said that because KBR was closing the Greenford premises, this had to be a redundancy situation and KBR was wrong to rely on its mobility clause to say that it was not. It therefore held that the real reason for dismissal was redundancy not misconduct.
The Tribunal also held that:
The EAT noted that an express mobility clause is subject to an implied requirement to give reasonable notice and that the employer must not exercise its discretion under such a clause in a way that makes performance of the employee’s duties impossible.
The EAT said that in this case, the Tribunal should have asked what it was that KBR genuinely had in mind as the reason for dismissal. The EAT noted that in its judgment the Tribunal held that KBR had genuinely and honestly believed that it could rely on the mobility clause, but the Tribunal disagreed with KBR's belief.
The EAT therefore found that the reason for the dismissal was not redundancy but misconduct so no statutory redundancy payment was due.
In practical terms however, that decision was of little help to KBR because the EAT also upheld the Tribunal's decision that the dismissals were unfair. The relocation clause was too broad and KBR had not acted reasonably when implementing it.
The key practical points for businesses to bear in mind when they have express mobility clauses in their employment contracts and are considering closing one premises and relocating employees to another are: