19 January 2017 #Employment
In the recent EAT case Kellogg Brown & Root (UK) Ltd (KBR) v Fitton & Anor, the Claimants’ employment contracts contained a broad mobility clause requiring them to relocate, if required, within the UK or elsewhere. KBR’s disciplinary procedure considered a refusal to comply with reasonable instructions, such as the mobility clause, an example of misconduct.
Two of KBR’s employees refused to move offices, when their office closed, due to lengthier commute times (between 20-30 hours per week) and were dismissed. The pair brought tribunal proceedings for unfair dismissal and redundancy payments. The ET found the reason for the dismissal to be redundancy rather than misconduct and therefore they had been unfairly dismissed.
On appeal, the EAT, disagreed that the reason for dismissal was redundancy and said that the Tribunal should be asking what the employer genuinely had in mind at the time – in this case, misconduct. However the dismissal was unfair, as the employer had not been entitled to rely on the mobility clause. The clause was too wide and uncertain, had been unreasonably invoked and both of the employees acted reasonably in refusing to comply with the instruction.
This case serves a reminder to employers to consider such clauses carefully. Tribunals will only accept mobility clauses to be valid if they are reasonable and unambiguous. Employers should give reasonable notice of planned relocation, provide assistance where possible and take into account employees personal circumstances.