The EAT decision in Kellogg Brown & Root (UK) Ltd -v- (1) Fitton and (2) Ewer 2016, is a useful reminder about drafting and exercising mobility clauses.
Mr Fitton and Mr Ewer both worked at the company’s Greenford office. This workplace was closed and they were asked to relocate to the company’s office at Leatherhead. Instead of carrying out a redundancy exercise, the company sought to rely on a mobility clause in their contracts of employment which stated that the company may require them to work “at a different location including any new office location of the company either in the UK or overseas”. Both refused to comply with the instruction to move, and brought tribunal claims. Mr Fitton lived 20 minutes from his workplace and objected to a two-hour commute each way to and from Leatherhead. Mr Ewer’s commute would also have increased, from 36 miles to 94 miles, and he argued that the company should take into account his 25 years’ service and the fact that he was approaching retirement.
At first instance the tribunal held that both employees had been dismissed by reason of redundancy. However, the EAT disagreed and held that although analysis of the situation suggested it might have been a redundancy situation, the reason for the dismissal was what the company genuinely had in mind at the time of the dismissal: the refusal of the employees to comply with the employer’s instruction
The EAT held that the dismissals were still unfair because the employer had not been entitled to rely on the mobility clause: the instruction to move to the other office had not been reasonable and the claimants’ refusal to move was reasonable in the circumstances. The mobility clause was too widely drafted, and lacked certainty.
Mobility clauses can be used to avoid redundancy and redundancy payments by moving employees to new workplaces. However, this case illustrates that simply having a mobility clause will not necessarily guarantee an employer the right to rely on it. The clauses should be carefully drafted, employers should exercise caution when considering upon relying on them and ensure that they are acting reasonably in all the circumstances.