Last week McDowell Purcell’s Employment Law team hosted a session on drafting and variation of contracts of employment.

One of the key points we focused on in drafting contracts of employment was the need to provide for a flexibility and mobility type clause, permitting the employer to reasonably re-assign employees to other locations, duties, roles or reporting lines.

The importance of such clauses was emphasised in a recent decision by the Court of Appeal where a temporary reassignment of a senior HSE official from a clinical managerial role to a non-clinical role was found to be a breach of contract.

The employee in question had acted as the area director of nursing and mental health services for Galway and Roscommon but was temporarily re-assigned to a different position for the duration of an investigation following several anonymous allegations concerning various health facilities within the catchment area.

The Court of Appeal noted that a clause in the contract of employment required the employee to “work in any service area within the vicinity as the need arises”. However, the Court held that this did not enable the HSE to change the nature of her post even if there was no loss of remuneration. The Court also rejected the notion that an implied term of contract allowed for the variation, emphasising that such an implication would require the employee to perform a fundamentally different job from that contracted for.

It is likely that a more extensive type clause clearly setting out the scope of the flexibility the employer might require would have afforded it more protection and enabled it to better defend the employee’s claim. Drafting aside, employers should remember that, even if such a clause is present in a contract, there are limits in what it allows the employer to do and flexibility must be exercised reasonably in the particular circumstances of the case. Here the employee felt that the true motive for the move was to appease the Psychiatric Nurse’s Association following pressure from it.

If an employer has little or no objective reasoning behind a relocation, reassignment, or suspension, particularly where a workplace investigation is involved, caution should be applied. However, a good starting point is a well drafted clause permitting the employer to re-assign duties, roles or reporting line where reasonably required.

Earley v HSE, Court of Appeal, [2017] IECA 158