In KBR Brown & Root (UK) Ltd v Fritton & Anor UKEAT/0205/16/BA the EAT has considered whether an Employment Tribunal erred in finding that two employees had been dismissed for redundancy purposes when their employer, KBR, appeared to invoke a mobility clause within their employment contracts to move them to another location on the closure of their office.

Mr Fritton and Mr Ewer were employees at KBR’s Greenford office when the company took the decision to close the Greenford office and transfer all employees to their Leatherhead office, increasing the two employees’ travelling time by approximately 20-30 hours per week. In doing so, the company purportedly exercised a mobility clause. KBR’s disciplinary procedure identified failure to carry out reasonable instructions as an act of misconduct. A number of the employees’ colleagues left under “exceptional circumstances”, such as childcare and elderly parent responsibilities, and received a redundancy payment.

Mr Fritton and Mr Ewer themselves raised issues with their line managers but were told that they were to be moved to Leatherhead. Both employees failed to attend work on the first day that they were expected in Leatherhead and subsequently were invited to disciplinary hearings. Both Mr Fritton and Mr Ewer were summarily dismissed and their internal appeals failed, at which point the employees issued separate tribunal proceedings for unfair dismissal and statutory redundancy payments. Both hearings were heard by the same Employment Tribunal Judge.

The Employment Tribunal found that both employees had been unfairly dismissed and were entitled to statutory redundancy payments. KBR’s unfair dismissal appeal was dismissed. However, their appeal against the redundancy was allowed. The EAT held that the Employment Tribunal had wrongly tackled the question of the reason for the dismissals. When considering the reason for dismissal within the definition of section 139 Employment Rights Act 1996, the Employment Tribunal found that the reason in KBR’s mind was that the two employees had disobeyed the instruction to relocate.

Despite the fact that the dismissals took place against the background of a redundancy situation, the Employment Tribunal judge erred in failing to keep his focus on what KBR genuinely thought was its reason for dismissal. The EAT held that the Employment Tribunal Judge should have asked what KBR genuinely thought the reason for dismissal was and that the Employment Tribunal’s reasoning was “tainted by its view that these were redundancy cases”.

KBR attempted to argue that if the Employment Tribunal Judge had erred in approaching the proceedings as redundancy dismissals, then the Judge’s findings that the dismissals were unfair could not stand. The EAT rejected this argument and held that the dismissals were unfair. The Employment Tribunal had correctly applied the three stage test when considering if the employees’ failure to obey instructions was reasonable:

1. whether the instruction was lawful (whether the mobility clause relied on was contractual);

2. whether KBR had acted reasonably in giving that instruction; and

3. whether the employees had acted reasonably in refusing to comply with that instruction.

The EAT held that the Employment Tribunal had correctly concluded that the mobility clause was too wide and uncertain and had been unreasonably exercised by KBR. The EAT confirmed that the Employment Tribunal had erred in identifying the reasons for dismissal. However, the EAT upheld the Employment Tribunal’s finding that the employees had been unfairly dismissed.

Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.