The claimants in Kellogg Brown & Root (UK) Ltd v Fitton worked at the employer's site in Greenford in north-west London. That site was closed and employees were instructed, under a contractual mobility clause, to work from Leatherhead in Surrey in future. Under the terms of the mobility clause the employer could require them 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". It went on to say: "You agree to comply with this requirement unless exceptional circumstances prevail".

Two employees were dismissed when, unwilling to extend their commute by some 20-30 hours a week, they refused to work at the Leatherhead site. The Tribunal decided they had been dismissed by reason of redundancy and were entitled to statutory redundancy payments, as well as concluding that they had been unfairly dismissed.

The EAT overturned the Tribunal's decision that the employees were dismissed for redundancy. Although the dismissals took place against the backdrop of a workplace closure, it did not necessarily follow that redundancy was the reason. The Tribunal had to ask what was in the mind of the employer when it dismissed. The employer believed that it could rely on the mobility clause and that it was a reasonable instruction to require the employees to work at Leatherhead. It was the employees' failure to comply with the instruction, not the redundancy, which resulted in dismissal.

Nevertheless, on the facts, the Tribunal was entitled to decide that the dismissals were unfair. It had concluded that the instruction to move was not reasonable. The mobility clause was too wide and uncertain and the claimants' particular circumstances made it reasonable for them to refuse to comply. One of them had just bought a flat near the Greenford site and didn’t have a car; while the other had worked there for 25 years and was due to retire in a year's time. Various mitigating steps that the employer had put in place were of no significant help to the claimants.

The decision is helpful in confirming that dismissing an employee for failing to comply with a contractual mobility clause is likely to be a conduct rather than a redundancy dismissal. Unfortunately the EAT decision does not analyse the Tribunal's reasoning about why the dismissals were unfair. It therefore does not take us much further on when it will be reasonable for an employer to rely on an express mobility clause in a workplace closure situation.