UK: Mobility vs Redundancy: Invoking Mobility Obligations In Potential Redundancy Situations

The recent Court of Appeal case of Home Office v Evans [2007] EWCA Civ 1089 held that an employer was entitled to choose to invoke its employees’ contractual mobility obligations rather than follow a redundancy procedure.

The claimants were Immigration Officers at the Waterloo International Terminal ("WIT"). After deciding to close its Waterloo immigration control, the Home Office informed all staff subject to contractual mobility clauses that they would be offered alternative employment elsewhere in the Immigration Service. Having been informed that they would be transferred to Heathrow, the claimants resigned, and alleged they had done so by reason of constructive dismissal.

The Employment Tribunal decided that the closure of WIT amounted to a redundancy situation and so the Home Office’s redundancy procedure applied. According to the tribunal, it followed that the attempt to invoke the claimants’ mobility obligations was a deliberate effort to avoid complying with the redundancy procedure, and the Home Office was therefore acting in a manner likely to destroy or seriously damage the implied term of trust and confidence in the claimants’ employment contracts. It was held that the claimants resigned in response to this breach of contract by reason of constructive dismissal. The Employment Appeal Tribunal upheld the tribunal’s decision, which was then overturned by the Court of Appeal.

The Court of Appeal held that the Home Office was clear and consistent in informing the claimants that it was relying on the mobility obligations and not its redundancy procedure. Although a potential redundancy situation arose as soon as the Home Office decided to close part of its business, an actual redundancy situation never materialised. By the time that the closure of WIT was announced, the Home Office had decided to invoke the claimants’ mobility obligations rather than dismiss them. The redundancy procedure did not therefore apply.

This decision shows that when deciding to close part of its business, an employer must choose at the outset either to invoke a mobility clause or to treat its employees as redundant. The mobility clause must be properly worded and invoked genuinely and not simply brought up retrospectively as a defence to a redundancy claim. It should be noted that this case related to the Home Office's own redundancy procedure and the principles may not be fully applicable to the statutory redundancy regime.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 30/11/2007.