Where an employer, to avoid making an employee redundant, changes an employee's place of work, it will be acting in breach of contract unless the employment contract contains a 'mobility clause'. In the recent case of Home Office v Evans & anor (2007), the Home Office sought to invoke a mobility clause to relocate employees. The Court of Appeal had to determine whether the Home Office's approach was lawful.
The claimants were immigration officers based at the Waterloo International Terminal ("WIT"). They were "mobile-grade" employees, subject to a mobility provision in the staff handbook which stated that they could be transferred to any civil service post in the UK or abroad. The Home Office decided to close the immigration controls at Waterloo and informed all staff at WIT that there was no longer a requirement for immigration officers to be based there.
Those employees who were subject to the mobility clause were informed that they would be consulted individually before being offered alternative employment within the Immigration Service. The claimants refused to take part in this process. The Home Office subsequently informed the claimants that they would be transferred to Heathrow, as a result of which they resigned and brought Tribunal claims alleging constructive dismissal and breach of contract.
The Court of Appeal decision
The Court of Appeal upheld the appeal, overturning the decisions of the Employment Tribunal and EAT, holding that the Home Office was entitled to invoke the mobility clause.
In reaching its decision, the Court of Appeal found that the Home Office had been clear and consistent in informing the claimants that it was relying on the mobility clause and not its redundancy procedure. Although a potential redundancy situation arose when the Home Office decided to close part of its business, a redundancy situation did not actually materialise at that stage because the Home Office did not intend to dismiss its employees. By the time the Home Office announced the closure of WIT, it had decided to invoke the claimants' mobility clause rather than to dismiss them. In view of this, the redundancy procedure did not apply.
Conclusion
A mobility clause should be invoked reasonably, genuinely and transparently, to avoid a breach of the term of trust and confidence implied in an employee's contract, and should not be invoked retrospectively as a defence to a redundancy claim.
Employers should decide at the outset, and certainly by the time the announcement is made to staff, whether to treat the employees as redundant or to invoke a mobility clause, and to stick to that decision.
Employers should note that mobility clauses are strictly construed by the courts. In light of this, it is important that mobility clauses are drafted clearly and unambiguously. If employers act in a way which goes beyond the ambit of the mobility clause, they run the risk that employees will bring successful constructive dismissal claims.
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