In Kellogg Brown & Rout (UK) Limited v (1) Fitton and (2) Ewer, the EAT had found that these two employees had been unfairly dismissed for refusing to comply with the instruction to move location under a mobility clause in their contract to another office when their office closed. The employer had not been entitled to rely on the mobility clause as its instruction to move to the other office had not been reasonable and the employees had reasonable grounds to refuse.
Facts of the Case
The Contract of Employment for Mr Fitton and Mr Ewer contained a mobility clause which stated as follows;
“The location of your employment is…but the company may require you 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. You agree to comply with this requirement unless exceptional circumstances prevail.”
Both claimants had their cases originally heard separately.
Mr Fitton was 34 and had worked for Kellogg for 11 years. He was informed that the office he worked at in Greenford would close and he would be transferred to their Leatherhead office. He had met his line manager on 21 April 2015 and explained to him that he lived in Harrow and he could either walk to work or take the tube which took about 20 minutes. He was able to drive but he did not have a car.
The change of office for Mr Fitton would have resulted in a two-hour commute each way, although he was aware of a possibility of car sharing. In his job, Mr Fitton was not routinely required to travel.
Mr Fitton was still instructed that he was to transfer to the new office location.
Kellogg considered that the mobility clause was there to ensure retention of the workforce and continuity of delivery for clients. They said that the transfer of roles from one office to another meant that there was no entitlement to a redundancy payment. Refusal to relocate could lead to dismissal for refusal to comply with employment terms. Mr Fitton attempted to continue to working at his original office, but was turned away. He was invited to a disciplinary hearing for alleged unacceptable conduct as he did not transfer. Mr Fitton was summarily dismissed and he issued tribunal proceedings.
Mr Ewer was 64 and was due to retire the next year. He had been employed by Kellogg for 25 years. He had always lived in St Albans. Mr Ewer was also informed that his office would close and he would be transferred to Leatherhead. Mr Ewer objected to the additional travel in the move to Leatherhead, which would turn a daily commute of 18 miles each way into one of 47 miles each way. He questioned the validity of the mobility clause which Kellogg sought to rely on and considered that he had exceptional circumstances after 25 years’ service and the fact that he was approaching retirement, should mean that he should be made redundant. Kellogg considered that requiring Mr Ewer to move to Leatherhead was reasonable on the basis that it was within the ambit of the mobility clause and measures were in place to assist. Neither Mr Ewer’s long term service nor his age constituted exceptional circumstances.
Mr Ewer also failed to attend the Leatherhead Office and was invited to a disciplinary hearing for alleged unacceptable conduct. He was summarily dismissed and he issued tribunal proceedings.
In an unfair dismissal claim, it is for the employer to show the reason for (or, if for more than one), the principal reason for dismissal.
When a tribunal considers the case put by the employer, it is for the tribunal to determine from the set of facts known to the employer, or beliefs held by the employer, what the real reason for a dismissal was. In this case, the real reason was related to the employees’ refusal to obey the instruction to relocate, issued in reliance on the mobility clause which featured in their Contracts of Employment. The Employment Tribunal had approached the question for the reason for this dismissal and had considered that it was a redundancy situation.
Redundancy and Mobility Clause
Where a redundancy situation arises out of closure of a workplace, the “workplace” for redundancy purposes is where the employee actually works, not where they could be required to work under their contracts.
The Court of Appeal has held:-
“… if an employee has worked in only one location under their contract of employment for the purposes of the employer’s business, it defies common sense to widen the extent of the place where he was so employed, merely because of the existence of the mobility clause …It would be unfortunate if the law were to encourage the inclusion of mobility clauses in contracts of employment to defeat genuine redundancy claims.”
However where there is a redundancy situation, an employer is entitled to exercise a contractual mobility clause, if the employer exercises the clause there will be no need to dismiss the employee and there will therefore be no right to a redundancy payment.
Relying on a Mobility Clause
If an employer seeks to rely on a mobility clause then even if there is an express of mobility clause, it has to be read subject to the necessary implication that there will be a requirement for reasonable notice and that the employer will not exercise its discretion in such a way to make the employee’s duties impossible. The clause also has to be exercised in a way so that the implied duty of mutual trust and confidence is kept. In Mr Ewer’s case it was not considered that the mobility clause was a valid contractual requirement given the reality of the situation of his employment. The instruction to move had not been reasonable. It was also confirmed in Mr Fittons case and the request to move to Leatherhead was not considered reasonable.
This case highlights the confusion that can arise when an employer seeks to exercise a contractual mobility clause against the backdrop of a redundancy situation. An employer can seek to rely on a contractual mobility clause to avoid dismissing an employee for redundancy. However, an employer needs to be clear if a dismissal takes place what the reason is for it. If an employer is seeking to rely on a mobility clause, the exact wording needs to be considered and whether it is reasonable to enforce. Employers also need to be reasonable in exercising the clause giving advance notice. In this case, the mobility clause was considered unfair and widely drafted. There would have been a great increase in travelling time which was not disputed. This was anything between 20 and 30 extra hours travelling a week, which in fact made the instruction an unreasonable one.