OFFICE OR EMPLOYEE RELOCATIONS - WHAT DOES AN EMPLOYER NEED TO BEAR IN MIND?
There are a number of reasons why an employer may wish to relocate an employee, several employees or even the whole office. Perhaps there have been problems between employees in a particular office, or there is more demand for the services carried out by an employer in one location as opposed to another. Perhaps the need has arisen due to a business transfer or the desire to move to new premises.
Whilst all of these reasons are perfectly plausible, moving employees is not often as straightforward as consulting with and informing employees in writing of the move and those employees simply accepting it so that everything can carry on as normal.
In terms of the employees’ contractual rights, it is a requirement under section 1 Employment Rights Act 1996 that an employee’s place of work is stated in their statement of employment particulars. It is common for employers to build some flexibility into such a clause so as to state that the employee will work at a particular location “or such other location as the employer may require from time to time”. However, such clauses can be interpreted restrictively by Tribunals and this wording should not be blindly relied upon in an attempt to force an employee (or employees) to relocate.
An employer may also insert a mobility clause in their contract that allows an employer to legitimately compel an employee to agree to such a move. Again however, the particular circumstances of the relocation will need to be examined, i.e. is the request reasonable in terms of the notice provided to the employee, will the employee be provided with relocation expenses and what is the distance the employee will have to travel? Are there circumstances particular to an employee that mean that a relocation is not practical or feasible such as a disability, or childcare commitments? If so, it is likely that those employees will object to the relocation and employers then need to proceed with care so as to avoid potentially costly constructive unfair dismissal and discrimination claims.
The reasons for the proposed relocation can also be significant. For example, if the relocation has come about because two employees have fallen out and cannot work together, the employee being relocated because of this may feel aggrieved that they are being treated unfairly if the other employee is not. This again could give rise to a claim (or claims). If the relocation has come about because of a merger or takeover where TUPE applies, such a relocation would form part of the duty to inform and consult with the affected employees’ representatives and there may be employees who object to the relocation as a result. If the relocation is part of a redundancy consultation, an employee may be offered a position at another office as an alternative to redundancy and the employer may deem this to be “suitable alternative employment”. If an employee subsequently refuses that position, that may affect their right to a redundancy payment. However, the employee may not consider the position to be suitable alternative employment for any number of reasons (these could be for the same reasons set out above – distance, working hours, personal circumstances) which could lead to the employee bringing unfair dismissal and/or redundancy payment and discrimination claims.
One option open to employers is that if there is nothing in the contract for an employer to rely upon, they could choose to dismiss objecting employees (giving the correct notice period) and then offer re-engagement on terms to take into account the relocation. Whilst this may then bring certainty to a contract in terms of a place of work, it is not without its potential for problems.
It is therefore clear that an attempt to move an employee, several employees or the entire office is not without its potential pitfalls. Employers should first of all check their contracts of employment and handbooks to ensure that they are up to date and offer the maximum flexibility needed for such a situation. Employers should then give consideration as to what clauses they may be able to enforce under the employees’ contracts of employment taking into account the particular circumstances of the relocation. When consulting with employees regarding a relocation, employers should do so in a manner that allows the employee to put any concerns across and those concerns should be addressed as far as possible – it may be possible to allay concerns at an early stage through consultation which may well have benefits in the longer term in relation to the relocation and beyond. Finally, employers should ensure that employees are treated fairly and in a non-discriminatory manner.
For further information about this area of law or if you have any other employment law queries, please contact a member of Chattertons’ employment team.