No, held the EAT in EXOL Lubricants v Birch.
The Claimants were employed as delivery drivers using HGVs. They lived in Manchester but the depot they had to attend to load up was situated in Wednesbury. Their employment contracts also stipulated that their place of employment was Wednesbury. Because of the cost of commuting, EXOL agreed to make available secure parking for the employees' HGVs in Stockport, near their homes. They would then drive from their homes to Wednesbury and the journey to and from Stockport was treated as part of their working day, for which they were paid.
A time came when the company could no longer afford to pay for the secure parking in Stockport and so they gave notice to terminate this arrangement. The employer sought to argue that there was a fair reason for dismissal, namely redundancy, on the basis that Stockport was the Claimants' place of work rather than Wednesbury. It therefore argued that the employer had ceased to carry on business in the place where the employee was employed. The employment tribunal rejected this proposition. The employees' place of work was not Stockport, but Wednesbury, because that was where their working day began and ended. The EAT agreed.
The proper test in determining where the employee is employed for the purposes of the redundancy provisions of the ERA is as follows. First, it is proper (but by no means conclusive) to have regard to a contractual provision. Secondly, it is appropriate to consider, depending on the facts of the case, any connection the employee may have with a depot or head office. Here, the employees' contractual place of work was at Wednesbury and, secondly, they had a close connection with the Wednesbury depot. There was therefore no redundancy situation at Wednesbury because the job and the need for people to do it remained. As the employer advanced no other potentially fair reason for dismissal, the dismissals were unfair.