Employer may enforce a mobility clause before being required to follow redundancy procedures
In Home Office v Evans the Court of Appeal has overturned decisions of the Employment Tribunal and EAT and said that it was not unfair dismissal when the Home Office invoked a contractual mobility clause to require immigration officers who had worked at Waterloo Station in London to relocate to Heathrow rather than be treated as redundant when their workplace (the immigration post at Waterloo) was closed down.
In their employment contracts there was a mobility clause which stated:
'As an immigration officer you can be required to transfer anywhere in the UK or abroad'
but there was also a specific redundancy procedure which applied to their employment when a workplace was closed down.
The employees had argued successfully before the Employment Tribunal that the employer could not 'dodge between' using the mobility clause and the redundancy procedure, choosing whichever one suited it best.
However, the Court of Appeal now says that, in such a situation, provided that the employer invokes the mobility clause first, it may choose to do so in order to avoid a redundancy situation altogether and that was what had happened in this case.
Points to note:
- where employers have not written mobility clauses into individual employees’ contracts and their workplace is shut down, the statutory redundancy provisions (and any contractual redundancy procedure) will automatically apply as a classic redundancy situation will have arisen
- however, in such circumstances, where the employees have mobility clauses on their contracts, a possibility of redundancy will have arisen but there is no need for the employer to treat the case as a redundancy situation until it has ruled out the possibility of invoking the mobility clause in order to avoid redundancies. Once this point is passed and redundancies are actual or proposed then there will be a redundancy situation with all that it entails
- while employers can use a mobility clause to require an employee to move to a job which may not necessarily be ‘suitable alternative employment’ as would be required in a redundancy situation, employers are under an implied duty to be reasonable in their use of such a clause. In United Bank v Akhtar it was held that not to allow an employee (who was by his contract required to move) three months to relocate himself and his family from Leeds to Birmingham was so unreasonable as to amount to a repudiatory breach of contrac,t entitled him to resign and claim constructive dismissal.