Law Report: Place where employee is employed is a question of fact

LAW REPORT: 23 July 1997

High Table Ltd v Horst; Court of Appeal (Lord Justice Evans, Lord Justice Peter Gibson and Lord Justice Hobhouse) 1 July 1997

In deciding whether an employee had been dismissed by reason of redundancy within the terms of section 81(2) of the Employment Protection (Consolidation Act) 1978, a factual rather than a contractual test should be applied to determine the place where the employee had been employed. The mere existence of a mobility clause in the contract of employment would not widen the extent of that place.

The Court of Appeal allowed the appeal of High Table Ltd from the order of the Employment Appeal Tribunal, allowing the appeal of the employees from the decision of an Industrial Tribunal that they had been dismissed for redundancy and that it was, in the circumstances of the case, reasonable for the employers to have treated that as sufficient reason for the dismissals.

Ashley Underwood (Manches & Co) for the employers; Declan O'Dempsey (Ole Hanson & Co, Kennington) for the employees.

Lord Justice Peter Gibson said that the employers provided catering services for companies and firms in the City of London and elsewhere. The employees had all worked as silver service waitresses at Hill Samuel in the City until dismissed pursuant to redundancy notices. Their terms of employment contained the following mobility clause:

Your normal place of work is as stated in your letter of appointment which acts as part of your terms and conditions. However, given the nature of our business, it is sometimes necessary to transfer staff on a temporary or permanent basis to another location. Whenever possible this will be within reasonable daily

travelling distance of your existing

place of work.

The employees applied to the Industrial Tribunal, each complaining of unfair dismissal or unfair selection for redundancy. The employers asserted that the employees had been dismissed for redundancy, that the dismissals were fair, and that every effort had been made to offer them subsisting vacancies elsewhere.

The Industrial Tribunal found for the employers, and the employees appealed to the Employment Appeal Tribunal. Their appeal was allowed.

On the present appeal, the issue had arisen whether section 81(2) of the Employment Protection (Consolidation) Act 1978, which provided that an employee who had been dismissed should be taken to have been dismissed by reason of redundancy if the employer's business had ceased or its requirements had diminished "in the place where the employee was . . . employed", imposed a contractual test or a primarily factual test.

It had been contended for the employees that the question where the employee was employed must be determined by reference to the contract of employment. If the contract contained a mobility clause, allowing the employer to require the employee to work elsewhere, "the place where the employee was . . . employed" extended to every place where the employee might be required to work.

The employers' submission was that the words of the statute clearly referred to the place where the employee actually worked, and not where in theory the employer could require the employee to work. Particular reliance had been placed on Bass Leisure Ltd v Thomas [1994] IRLR 104.

Agreeing broadly with the interpretation of the statutory language in that case, the question it posed - where was the employee employed by the employer for the purposes of the business? - was to be answered primarily by a consideration of the factual circumstances which had obtained until the dismissal. If an employee had worked in only one location under his contract of employment for the purposes of the employer's business, it defied common sense to widen the extent of the place where he was so employed merely because of the existence of a mobility clause.

In the present case it was plain that the place where all the employees were employed by the employers was Hill Samuel, and that there had been a redundancy situation there which had caused the employees to be dismissed.

Kate O'Hanlon, Barrister