In our third article in this series, we consider contractual terms relating to place of work and mobility.
Place of work
Section 1 of the Employment Rights Act 1996 requires employers to give employees a written statement of particulars of employment within two months of the start of their employment. The employee's place of work, or where the employee is required or permitted to work, together with an indication of that and the address of the employer must be provided in the section 1 statement.
If the employee is or may be required to work outside the UK for more than one month then this must also be detailed in the section 1 statement, although the precise location of any overseas work need not be specified. In such circumstances the statement must also include the following:
- the period the employee will work outside the UK
- the currency in which remuneration is to be paid during that time
- any additional remuneration payable, and any benefits to be provided, by reason of the employee being required to work outside the UK; and
- any terms and conditions relating to the employee's return to the UK
Most employers include the section 1 information in a contract of employment.
Generally, the terms of a contract of employment cannot be changed unilaterally by the employer without the agreement of the employee. However, a certainly level of flexibility in favour of the employer can legitimately be built into the contract. Mobility clauses are a good example of this by allowing the employer to change the employee's place of work, should the need arise.
However, tribunals will interpret mobility clauses restrictively, with any ambiguity in the clause being decided in the employee's favour. Careful consideration should therefore be given to the drafting of any mobility clause to ensure it is clear and reasonable. It is likely that a very broad clause which purported to enable the employer to change the employee's place of work without any restriction, would be unenforceable.
Invoking a mobility clause
The way in which the employer operates the mobility clause is also important; tribunals expect employers to act reasonably, for example, by giving adequate notice of the move. What is reasonable however will depend on the specific circumstances of each case.
Tribunals will also use the existence of implied obligations in the contract of employment to restrict the way in which a mobility clause can be operated by an employer.
In United Bank v Akhtar Mr Akhtar was required to move from a branch in Leeds to a branch in Birmingham within a six day time frame. United Bank sought to rely on a mobility clause in the contract of employment which, on the face of it, gave United Bank a right to require Mr Akhtar to relocate on a temporary or permanent basis to any part of the UK. However, the tribunal held that United Bank's operation of the mobility clause (on little notice and without any payment of relocation expenses) amounted to a breach of terms which were implied into Mr Akhtar's contract of employment.
Implied right to alter location
If there is no express mobility clause in a contract of employment, the employer may be able to rely on an implied mobility clause if the relocation is within travelling distance of the employee's home. In Courtaulds Northern Spinning Ltd v Sibson and another, the Court of Appeal found that moving the workplace of an employee by one mile was acceptable.
This implied right offers significantly less certainty for both the employer and employee and it is therefore preferable for an express mobility clause to be included within a contract of employment where possible.
Mobility or redundancy?
Mobility clauses are often relied upon by employers to avoid dismissals in what would otherwise be a redundancy scenario. However, this is potentially tricky for employers to navigate in practice, as evidenced by the extensive case law in this area. Employers must make it clear from the outset that they intend to rely on a mobility clause to move the employee to another place of work if their current workplace is closing down.
In the recent case of Kellog Brown & Root (UK) Ltd v Fitton the mobility clause stated:
'.. 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..'
In this case one employee was required to move to an alternative place of work which was over a 2 hour drive (each way) from his home and he did not own a car. A tribunal found that it was reasonable for the employee to refuse to move his place of work and his subsequent dismissal for failing to attend the new place of work was therefore unfair. This emphasises the importance of ensuring that mobility clauses are both clearly and unambiguously drafted and reasonably exercised.
Tips for employers
- The more detrimental the change to the interests of the employee, the harder the mobility clause will be to rely on. Very widely drafted clauses are unlikely to be enforceable.
- It is a delicate balancing act to ensure meaningful flexibility in the drafting for the employer which does not have too draconian an impact on the employee.
- Consider the likely future realities - if a need to move an employee 'anywhere in the UK' is unlikely then don't include this in the mobility clause. A potential move 'within reasonable travelling distance' of the current workplace is much more likely to be enforceable
- Consider clearly setting out the limits on changes to working locations that may be imposed by restricting this to a specific area or distance. If an employer operates across numerous sites, it may be possible to detail within the mobility clause the alternate sites where an employee might be asked to work
- Even when relying on a mobility clause, consultation with the affected workforce will be important. Reasons for the changes should be explained and reasonable notice of when the change will take effect given. The clause could make it clear that the employer will do this
- In a relocation exercise consider whether it is reasonable to offer any assistance (financial or otherwise) to the affected employees. Timing is also likely to be relevant, for example, if the employee has children, to tie in with the start of school years
Next time we will be looking at incapacity and sick pay provisions.