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Mobility clause

18 October, 2017

Can we always rely on a mobility clause in the employment contract?

We are often asked about business relocation and how far a mobility clause in the contract will stretch.

This will always fall back to the reasonableness principle and the recent Employment Appeal Tribunal (EAT) decision in Kellogg Brown & Root (UK) Ltd v (1) Fitton and (2) Ewer examined this in more detail.

Kellogg Brown & Root operated two sites in the UK, one in Greenford and one in Leatherhead.

They were more than 30 miles apart.

In April 2015, Root announced that it would be closing its Greenford site at the end of June 2015 and that all employees would transfer to Leatherhead on 1 July 2015.

Root sought to rely on a mobility clause in the employment contract, which stated:

“The location of your employment is Greenford 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.”

Mr Fitton, who was employed at the Greenford site, objected to the transfer on the grounds that he didn’t own a car and that the change would mean a 2 hour commute which he considered unreasonable.

Mr Fitton and his co-claimant Mr Ewer, maintained that there was a workplace redundancy situation and they were entitled to redundancy payments.

Root refused to consider the objections believing that the move was within the scope of the mobility clause.

In addition, they maintained that assistance and support were being provided, such as financial contribution to any increased travel costs, consideration of flexible working and a reduction of core working hours.

When the claimants failed to attend the Leatherhead site, they were dismissed for failure to obey a lawful instruction of the company.

The claimants brought claims of unfair dismissal and for statutory redundancy payments.

The Tribunal found that the dismissals were unfair.

Whilst it is always a good idea to have a mobility clause for flexibility purposes, caution should always be taken when exploring its use, to ensure individual circumstances are addressed to see how reasonable the application of the mobility clause will be.

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