Some dismissals have been found to be unfair where an employer relied on mobility clauses in contracts after an office closure.
In Kellogg Brown & Root (UK) Limited v (1) Fitton and (2) Ewer, the Employment Appeal Tribunal looked at whether an Employment Tribunal had wrongly found that two employees, Mr Fitton and Mr Ewer were unfairly dismissed when their employer relied on a mobility clause in their contracts to move them to another site when their office closed.
The employer, Kellogg was a construction, engineering and services company and had sites in Greenford and Leatherhead. The employees worked at the company’s Greenford site and were told prior to its closure that they would be required to work at the Leatherhead office once the Greenford site closed.
The employer relied on a mobility clause in the employees’ contracts of employment. The clause stated:
The location of your employment is… but 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. You agree to comply with this requirement unless exceptional circumstances prevail.
Several employees with elderly parent caring and childcare responsibilities exited under “exceptional circumstances” and received a redundancy payment.
Mr Fitton obtained legal advice on his position. After doing so, he informed his employer that the mobility clause was unenforceable and that he was redundant and therefore entitled to a redundancy payment. The company explained that Mr Fitton must transfer to Leatherhead and a failure to do so would result in unauthorised absence and they would instigate the disciplinary process. Mr Fitton attempted to continue to work at Greenford but was turned away. He was subsequently invited to a disciplinary hearing and dismissed. He appealed his dismissal but was unsuccessful. Mr Fitton brought an unfair dismissal claim against Kellogg.
Mr Ewer also informed his employer that the mobility clause was unenforceable. He raised the fact that his daily commute of 18 miles each way would increase to 47 miles each way. Again, Mr Ewer failed to commence work at the Leatherhead office and was invited to a disciplinary hearing for alleged unacceptable conduct. He was dismissed and brought an unfair dismissal claim.
The Employment Tribunal held that the dismissals were unfair and that the reason for dismissal was redundancy meaning that the disciplinary process was procedurally flawed. The Judge commented that the mobility clause was very widely drafted and lacked certainty. The instruction to work in Leatherhead was unreasonable due to the significantly increased travelling time.
Kellogg appealed the decision.
The Employment Appeal Tribunal allowed the appeal against the finding that the employees had been dismissed for redundancy and found that the reason was alleged misconduct. However, the Employment Appeal Tribunal dismissed the employer’s appeal against the findings that the dismissals were unfair.
Moving an employee’s place of work can be a problem for employers given issues concerning redundancy, unfair dismissal and/or constructive unfair dismissal.
This decision shows the confusion that can arise when an employer seeks to exercise a mobility clause in a contract of employment in a redundancy situation. The use of a mobility clause may enable an employer to avoid redundancy dismissals but the mobility clause drafting and the manner in which the clause is applied can be subject to scrutiny.
If you require advice on redundancies, dismissals, use of a mobility clause or any other employment issue, please contact Farleys Employment Solicitors on 0845 287 0939 or submit your enquiry through our online contact form.
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