Can the mobility clause in your employee’s contract be trusted?

By October 4, 2017Uncategorized

The recent Employment Appeal Tribunal (EAT) decision in Kellogg Brown & Root (UK) Ltd v (1) Fitton and (2) Ewer stated that moving employees from one site to another 30 miles away was unreasonable and therefore the dismissals when they wouldn’t move were unfair.

Appeal against a finding that the Claimants were unfairly dismissed and against a ruling that they were entitled to statutory redundancy payments. The unfair dismissal appeal was dismissed, the redundancy appeal was allowed.

The workplace where the 2 Claimants worked was shut down and they were instructed to work at a different location in accordance with a mobility clause in their contracts of employment. This relocation would have meant an increased commute of between 20 and 30 hours per week. Both Claimants refused to relocate and were dismissed. The ET found their dismissals to be unfair and also ruled that they were both entitled to statutory redundancy payments. The Respondent appealed.

The EAT allowed the appeal in respect of the redundancy decision. The ET had wrongly approached the question of the reason for the dismissals from the perspective of there having been a redundancy situation within the definition of section 139 ERA when it had found that the reason in the Respondent’s mind was related to the Claimants’ refusal to obey the instruction to relocate, issued in reliance on the mobility clause which featured in their contracts of employment. However, the EAT dismissed the appeal in respect of the unfair dismissal decisions. The ET had correctly applied the three stage test identified by the Respondent, asking (1) whether the instruction was lawful (whether the mobility clause relied on was contractual), (2) whether the Respondent had acted reasonably in giving that instruction, and (3) whether the Claimants had acted reasonably in refusing to comply with that instruction. It had concluded that the mobility clause was too wide and uncertain, had been unreasonably invoked by the Respondent and that the Claimants had reasonably refused to comply with the instruction.