JOB MOBILITY

As an employer, you are required under the Employment Rights Act 1996 to provide all your employees with a written statement of terms and conditions. This includes their place of work, which can be one specific location or several different places.

However, if you don't want to specify any location at all, you can include a mobility clause into the contract which allows you to change where your employee works.

Is the mobility clause subject to any restrictions?

Yes, mobility clauses are subject to three basic implied terms:

• you must give reasonable notice of a proposed move
• you have to ensure that it is possible for the employee to comply with the request to move
• you must not operate the clause in a "capricious" way or in bad faith so as to destroy the implied duty of trust and confidence between you and your employee. (In United Bank Ltd v Akhtar, for example, the Employment Appeal Tribunal said it was unreasonable for the employer to expect the employee to move within a six-day time frame from a branch in Leeds to a branch in Birmingham).

What is the effect of a mobility clause in the event of redundancy?

Although it is not difficult usually to establish where someone works, it can be confusing when the contract contains a mobility clause. Consider the case of Horst and ors v High Table Ltd in which a number of silver service waitresses were made redundant by their employer.

Although they had all been working at one location where the redundancies had taken effect, the women argued that there was a provision in their contracts allowing their employer to transfer them elsewhere which would mean they would not be redundant. However, the Court of Appeal disagreed and said although the contract contained a mobility clause, the reality was that the women had always worked in the place where the redundancies had taken place.

In another case concerning redundancies, (Home Office v Evans), Mr Evans and a colleague worked as immigration officers based at Waterloo International Terminal but had a clause in their contract stating that they could be transferred anywhere.

The Home Office decided to close Waterloo and although it initially thought about making the men redundant, it changed its mind after getting legal advice and decided to enforce the mobility clauses. Both the men claimed breach of contract and unfair dismissal.

The tribunal said that the Home Office could not change its mind and enforce the mobility clause once it had considered the possibility of making the men redundant. But the Court of Appeal disagreed. It ruled that there was no reason in law why an employer should not use a mobility clause to avoid a redundancy.

The practical effect of this decision seems to be that you can rely on a mobility clause even in a redundancy situation, as long as you have made clear from the outset that this is what you are doing.

Can job mobility clauses be discriminatory against women?

Discrimination can occur at any stage from recruitment onwards if employers make negative assumptions about the degree of mobility of female applicants or employees, on the basis of their marital and/or family responsibilities.

In the case of Meade-Hill and National Union of Civil and Public Servants v British Council, the claimant argued that the mobility clause in her contract was indirectly discriminatory against her, since it was more difficult for women than men to move house because they were more likely to be secondary earners. Although the employer had not tried to invoke the clause, the Council had indicated that they might have to.

She said she could not move because her husband, who earned a lot more than her, would not be able to earn an equivalent amount outside London. The Court of Appeal agreed that more women than men would have trouble complying with a requirement to be mobile and that the clause was therefore indirectly discriminatory in this instance.

Can you change someone's place of work on return from maternity leave?

Women have the right to return to the same job with all the same terms and conditions after ordinary maternity leave. Failure to allow an employee to return to her old job normally constitutes an automatically unfair dismissal.

But what exactly does the "same" role mean? In Blundell v St Andrews Catholic Primary School, the Employment Appeal Tribunal said that the school was not obliged to allow a teacher returning from ordinary maternity leave to return to teach a particular class. Instead, it found that her role was that of a primary school teacher and not the teacher of the class she had left before going on leave.

It ruled that where the role varied in practice (as here), the employer did not have to "freeze time at the precise moment that maternity leave is taken, but may have regard to the normal range within which variation has previously occurred". As her role was regularly rotated, the EAT found that the nature of her job was to teach at a primary school, her capacity was as a class teacher and her place of work was simply the school.

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SHOWING THEIR AGE

It is unlawful to directly or indirectly discriminate against someone because of their age, unless the employer can justify it. In Rolls Royce plc v Unite the Union, the Court of Appeal said that length of service in a redundancy selection policy was a justifiable criterion for selection.

What happened?

The union had negotiated two collective agreements on redundancy with the company many years before the introduction of the age regulations. As part of the selection process, every employee was scored under five criteria and also received one point per year of continuous service. Points were deducted for unauthorised absences and those with the fewest points were selected for redundancy.

With the introduction of the age regulations in 2006, Rolls Royce argued that using length of service would unlawfully discriminate against younger workers under regulation 3. This states that it is direct age discrimination for an employer to treat someone less favourably than someone else because of their age unless they can justify it. Also that it is indirectly discriminatory to apply a provision, criterion or practice which seems to apply to everyone equally, but which actually disadvantages people of a certain age group.

The High Court agreed with the union. It concluded that the parties had agreed a scheme that allowed Rolls Royce to succeed in a defence to an age discrimination claim under regulation 3, as "the legitimate aim is the advancement of an employment policy which achieves a peaceable process of selection agreed with the recognised Union".

In any event, the High Court said that this agreement fell within regulation 32. (This states that it is not unlawful for one worker to be put at a disadvantage in comparison to another worker "in relation to the award of any benefit" that is based on length of service, as long as it "reasonably" fulfils a genuine business need). Contrary to what the employers had argued, there was no reason to interpret the phrase "award of any benefit" narrowly and it was certainly a benefit to remain in employment when other people lost their jobs.

The Court of Appeal dismissed the appeal, saying that the company could not show that the criterion was not "a proportionate means of achieving a legitimate aim". Viewed objectively, the Court concluded that the length of service criterion was a proportionate means of achieving a legitimate aim. The aim was to reward loyalty and achieve a stable workforce, both perfectly legitimate aims.

It was proportionate because "the length of service criterion is only one of a substantial number of criteria for measuring employee suitability for redundancy, and that it is by no means determinative. Equally …the length of service criterion is entirely consistent with the overarching concept of fairness".

Although it was not strictly necessary to consider regulation 32, the Court said that the key word in the legislation was "reasonably". And, in its view, a length of service criterion of more than five years did "reasonably" fulfil a business need of the company - having a loyal and stable workforce.

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SHIFTING STATUS

In order to bring a complaint of unfair dismissal before a tribunal, claimants have to be employees. In other words, have a contract of employment. In Little v BMI Chiltern Hospital, the Employment Appeal Tribunal (EAT) decided that a "bank" porter (who worked on an as and when basis) did not have a contract because the employer could (and did) withdraw work from the worker.

What happened?

Mr Little started working for the hospital as a porter on the "bank" system in October 1992. On average he worked 20 to 30 hours per week doing the same job as two full-time porters who had contracts of employment and were therefore employees.

In April 1997 Mr Little, in response to an offer of permanent employment on annualised hours, said that he would rather remain an independent contractor. He also confirmed in writing that he did not have to accept work from the hospital nor did they have to offer any to him – known as mutuality of obligation.

He confirmed again in 1999 and 2008 that there was no mutuality of obligation and that each period of work was separate. He was dismissed in February 2008 and claimed unfair dismissal.

The tribunal rejected Mr Little's claim that he was an employee, holding that, as per the case of Carmichael v National Power, he had a choice whether or not to work. The fact that he had such a choice was "inconsistent with his claimed status as an employee, and in particular with the existence of a mutuality of obligations between the parties, respectively to undertake and to provide work."

This was underlined by the fact that the hospital could (and occasionally did) send bank workers home half way through a shift if it turned out they were not needed and were not then paid for the rest of that shift.

Mr Little appealed on the basis that, unlike Carmichael, he was not arguing that he had a global contract of employment. Instead he argued that each period of work amounted to a separate contract during which there was mutuality of obligations as per Stephenson v Delphi Systems Ltd.

Mr Little appealed to the EAT who accepted that there was a contract during each period of work but that this was a contract for freelance services. Furthermore, the written evidence clearly indicated that there would be no mutuality of obligation even on the basis of a succession of individual contracts

They differentiated Mr Little's case from previous authorities in which workers had to be paid for a session once they started it. This was because bank workers could be, and in fact were, sent home halfway through a shift losing their entitlement to pay for the rest of that shift.

There was nothing to indicate that what was written did not reflect the true intention of the parties and his appeal therefore failed.

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IN BRIEF

Involving employees fully in the future of the firms they work for will be a key step if businesses are to innovate and take advantage of new opportunities, according to a report published recently.

The report – Engaging for Success: enhancing performance through employee engagement - recommended Government support and more cooperation by UK businesses (of all sizes) to make sure the relationship between employees and employers is at the centre of successful business plans.

Led by David MacLeod (an advisor on change management) and Nita Clarke (director of the Involvement and Participation Association), the review was commissioned last September by the Government.

The report includes the following recommendations:

• The Government should start a nationwide awareness raising campaign over the next eight months, to expose the widest range of companies, businesses and organisations in the public, private and third sector to the potential benefits of employee engagement
• The Government and its agencies should work together to ensure their support is aligned and tailored to the needs of different organisations in different sectors of the economy seeking to enhance levels of employee engagement
• A range of more practical support for organisations who want to raise levels of employee engagement should be made available by March 2010. This support should be designed in consultation with businesses and other organisations to ensure it is tailored to their needs.

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