In Evans and Another v Home Office, the Court of Appeal ruled on the relationship between a mobility clause and a contractual redundancy policy.
The Court held that, if the Home Office proposed dismissal on grounds of redundancy, it was bound to follow the redundancy procedure. However, if it preferred to invoke a mobility clause in order to avoid redundancy dismissals, it was entitled to make that choice.
The two claimants were immigration officers based at Waterloo station. Their contracts included contractual mobility clauses which specified that they were “liable to be transferred to any Civil Service post, whether in the UK or abroad”.
A contractual redundancy scheme applied to them and in May 2004 the Home Office announced its decision to close the Waterloo immigration unit and offer employees alternative employment elsewhere.
In August 2004 the two claimants were told they were to be transferred to Heathrow Airport. In September 2004 they sent in identical resignation letters and brought tribunal claims of constructive unfair dismissal.
An employment tribunal found that the Home Office was not entitled to invoke the mobility clause to transfer the claimants to Heathrow – the situation was one of potential redundancy, the contractual redundancy policy applied and the Home Office had failed to follow it. The tribunal also found that the Home Office had breached the duty of trust and confidence by choosing to invoke the mobility provisions in order to avoid treating the closure of the Waterloo unit as a redundancy situation.
The Court of Appeal held that the employer’s motive was irrelevant. Whatever the motive, it was legally entitled to invoke the mobility clause.
Impact on employers
With respect to the EAT, the Court of Appeal's decision must be the right one: in general terms, it cannot be the case that an employer is less entitled to rely on one contractual right than it is on any other contractual right.
The implied duty of trust and confidence does place limitations on how a contractual mobility clause is operated. However, the employees did not raise the issue in this case so the Court of Appeal did not examine the point. As a minimum, in invoking a mobility clause the employer is likely to be required to consult with its employees in good time about the proposed relocation.