The claimant alleged that she had been unfairly constructively dismissed from her employment as manager of one the respondent’s branches. It was argued that there were 4 separate fundamental breaches surrounding an attempt to transfer and demote the claimant to a different position in a different branch.

It was the respondent’s contention that the claimant failed to accept a move which effectively amounted to failure to comply with a reasonable work instruction and was misconduct. Whilst there were a number of issues in the case, the respondent’s reliance on a contractual ‘mobility clause’ is of note as they pointed to it to argue that the employer had the ultimate power to move an employee if it so wished. The tribunal clearly rejected this argument and stressed the importance of consultation with the employee. The tribunal actually held the proposed move to be an express breach of contract, as it would have resulted in demotion.

Practical lessons

The tribunal was unequivocal, after considering United Bank Limited v Akhtar [1989] IRLR 507, that reasonable notice and consultation with an employee is key in the exercise of a mobility clause and employers must tread carefully when considering its usage.

Perhaps of most importance in considering a mobility clause is its ‘feasibility’ as recognised by the tribunal. In reality, the new position the claimant was offered here would have doubled her journey to work and also significantly affected her childcare responsibilities. The employer did not consider such impacts in any way, which led to the finding that the clause was not contractually permissible. Employers are more likely to be able to defend the use of a mobility clause if it is genuinely required ‘by the needs of the business’ and if they constructively notify and consult with the affected employee.

This case review was written by John Taggart BL. NI Tribunal decisions are available on the OITFET website:

http://www.employmenttribunalsni.co.uk/