Mobility clauses are often a standard part of contracts of employment. They generally say that an employer can require an employee to work at a different location on a temporary or permanent basis, and will usually specify a geographical area to which the clause applies. I am sure you will agree that they can be useful clauses to have in employment contracts!
However, the presence of such clauses does not mean that employers have the right to change workplace locations at the drop of a hat. In order to be able to rely on a mobility clause, there has to be an application of “reasonableness”.
What do I mean by “reasonableness” in this context? Well, it is a little subjective and dependent upon individual facts, but essentially it is about the degree of the change. At one end of the scale, a change of location from one workplace to another workplace located only half a mile away is likely to be considered as reasonable, with impact on staff being minimal. At the other end of the scale, a change from a workplace in Portsmouth to Edinburgh (447 miles apart) is unlikely to meet the test of reasonableness, and employers are unlikely to be able to rely on the mobility clause. The more detrimental the change to the interests of the employee, the harder the clause will be to rely upon.
Employers should also note that widely-drafted mobility clauses of a non-specific nature are extremely unlikely to be considered as reasonable, and that consultation with employees (potentially including a period of statutory collective consultation, if 20 or more employees are going to be affected by a change of location) will be an important factor an Employment Tribunal will take into account when considering cases involving mobility clauses.
A recent Employment Appeal Tribunal (EAT) case (Kellogg Brown & Root v (1) Fitton and (2) Ewer (2016)) examined the issue of reasonableness. In this case, Kellogg Brown & Root had two sites in the UK – one in Greenford and one in Leatherhead (30 miles apart). The company wished to close its Greenford site and relocate all employees to Leatherhead. The company sought to rely on the mobility clause in their contracts of employment. Two employees objected to the move. Both objected because their commutes to work would increase significantly (in one case from 10 minutes to 2 hours as he lived near to the Greenford site and did not own a car). They both said that they should be entitled to redundancy payments. The company rejected their objections, and refused to pay redundancy. This was on the basis that Leatherhead was within the range of the mobility clause, they were offering assistance with travel, offering flexible working opportunities and reduced hours to reduce the travel burden, and they had consulted all employees collectively and individually about the move. Ultimately, the two employees were dismissed when they failed to turn up to work at Leatherhead.
The employees brought claims for unfair dismissal and for statutory redundancy payments. The Employment Tribunal found that the employees were unfairly dismissed, and also owed redundancy payments. The Company appealed to the EAT, who did not agree with the Employment Tribunal’s decision about redundancy payments, but did agree that the dismissals had been unfair. The EAT said that the mobility clause was too wide and uncertain, and could not be relied upon.
Case law in this area makes it clear that mobility clauses must be carefully drafted and limited in scope to be enforceable. This does not mean that an employer can never relocate a workplace to distant shores, but it will mean that in order to do so, other processes and considerations will need to be taken into account. Simply pointing to a mobility clause is unlikely to be enough. Mobility clauses have their uses in some circumstances, but always seek advice about the drafting of such clauses and before taking steps to locate a workplace elsewhere.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).