It is a requirement of Article 33 of Employment Rights (NI) Order 1996 (statement of particulars of employment) that an employer is required to state an employee’s place or places of work. These details are often contained in a contract by way of a mobility clause which reserves the right of the employer to change the place of work. When drafting or exercising a mobility clause there are certain considerations to be taken into account.

Does a Contract need a Mobility Clause?

If the contract is being used to cover the requirements of Article 33 then at minimum it needs a reference to a place /places of work. If there is no mobility clause a court will imply a minimum term, if it is essential to make the contract work, allowing the employer to ask an employee to work within a reasonable daily distance of their home. The case of Courtaulds Northern Spinning Ltd v Sibson and Transport & General Worker's Union [1988] IRLR 305 confirmed that the implied right did not have to be reasonable or for a genuine operational reason, just that it was needed to give the contract business efficacy. In order to decide this the court will look at the following:

• the nature of the business and whether it is multi-sited
• the nature of the employee's role – for example are they already a mobile worker?
• whether employee has moved previously.

Some arguments may be avoided by having a clause dealing with mobility and a clause can potentially extend the employer’s rights beyond what will be implied by a court.

Implementing the Clause

Although the terms of a clause itself need not be reasonable the implementation of it may be limited by other implied terms. In United Bank Limited v Akhtar [1989] IRLR 507 the Employment Appeal Tribunal said that in the implementation of an express term there were three implied terms to abide by – reasonable notice of transfer, not to undermine trust and confidence and not to exercise the discretion around providing relocation expenses in a way that makes it impossible for the employee to move. Although Mr Akhtar’s contract had a mobility clause he was only given a few days’ notice to move 125 miles with no expenses provided. The EAT held that he had been constructively dismissed.

A relocation due to a downturn or cessation in work may also constitute a redundancy. In these circumstances, the mobility clause will be taken into account but an added factor to be considered is whether it is reasonable to ask the employee to relocate. Depending on the nature and extent of the relocation an employer may be able to sustain the argument that dismissal in these circumstances is for the employee’s refusal to relocate rather than redundancy.

Where an employee needs to relocate a number of employees and the employees refuse the employer could consider dismissal and re-engagement. If the relocation involves more than 20 employees the employer should be mindful of the collective consultation requirements.

Avoiding Litigation

Although a mobility clause does not have to be reasonable to be enforceable employers should proceed with caution. It is much easier to seek agreement for any move than to try and impose it on an unwilling employee. The Akthar case makes it clear that employers should consider the impact of the clause and to try and mitigate that impact if possible. Employers should also consider alternatives – homeworking, ‘hot-desking’ or other flexible arrangements.