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Mobility Clause Dismissals... Redundancy or Conduct?

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Is a dismissal classed as a redundancy where employees fail to comply with a mobility clause in their contract?

This was addressed by the Employment Appeal Tribunal (EAT) in the case of Kellogg Brown & Root (UK) Ltd v Fitton.

Following a site closure in Greenford, the employees were instructed to work from Leatherhead in Surrey. The employer sought to rely on a mobility clause in the contracts which would require the employees 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.” The mobility clause further added “you agree to comply with this requirement unless exceptional circumstances prevail.”

Two employees refused to work from the Leatherhead site, arguing this was extending their commute by a further 20-30 hours per week and were subsequently dismissed. The Employment Tribunal (ET) held the employees had been dismissed by reason of redundancy and therefore were entitled to each receive a statutory redundancy payment, as well as concluding they had been unfairly dismissed.

The case was appealed to the EAT.

The EAT overturned the decision reached by the ET on the grounds that although the dismissals followed from a workplace closure, redundancy was not in fact the reason for the dismissal. The employer believed it could rely on the mobility clause and that it was reasonable to require the employees to work at Leatherhead. In fact, it was the employee’s failure to comply with the instruction which became the reason for the dismissal.

In any event, the Tribunal was correct in deciding that the dismissals were in fact unfair. On review, the mobility clause was drafted too widely and upon assessing each of the employee’s individual circumstances, their reason for not complying with instructions was reasonable. One employee has recently purchased a property near the Greenford site and had no vehicle and the other employee had worked within the company for 25 years and was due to retire the following year.

This case serves a helpful reminder that dismissing an employee for failing to comply with a mobility clause set out in their contract of employment is in fact a conduct rather than redundancy dismissal.