Their contracts of employment contained the following mobility clause:
“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.”
K had been holding discussions regarding workloads and office capacity, and subsequently proposed to close the Greenford office and move all employees to the Leatherhead office. F and E were both consulted individually about the proposed relocation of their work. Both employees noted the huge increase in distance to commute, and E also noted his 25 years of service, coupled with the fact that he was retiring the following year so wished to reduce his workload, not add hours onto his commute time. K responded to the claimants informing them that the decision was confirmed and they were expected to move to the Leatherhead office.
F attempted to continue working at Greenford, but was denied access to the office by security. E refused to attend work at Leatherhead and once the Greenford office closed did not attend work again.
Both claimants were invited to attend disciplinary hearings for their failure to attend work and both claimants were dismissed with Kellogg stating that their failure to attend amounted to serious misconduct.
The claimants brought a claim in the Employment Tribunal (ET) for unfair dismissal and statutory redundancy payments, while K relied on the mobility clause above to argue that the claimants were dismissed fairly for not complying with the terms of their contract of employment. The ET found that the claimants had been unfairly dismissed and both claims succeeded for the following reasons:
- Neither claimant had been required to work anywhere else during their employment other than Greenford.
- The steps taken to alleviate the disadvantages to employees of further travel requirements (including 6 month travel compensation and reduced hours for employees travelling on the M25) were not sufficient to alleviate F and E’s disadvantages.
The K appealed the decision.
Alongside other findings relating to the correct grounds for dismissal which are not critical to this note, the Employment Appeal Tribunal (EAT) held that the mobility clause within the contracts of employment was unenforceable. As a result, the instructions given to the claimants were unreasonable and so dismissal for non-compliance of the clause was unfair. Whilst not radically altering the existing body of case law relating to mobility clauses, this case demonstrates yet again that simply relying on a mobility clause may well not be sufficient to enact a fair dismissal, and care should always be taken when attempting to rely on such a clause.