05 Feb 2021
Relocation of employees can occur for several reasons. A reduction in work, a business reshuffle, or an expiry of a lease are all causes for relocation.
When considering this, always check if you have a mobility clause in your employees’ contracts. In this article, we’ll look at what they are, how you use them, and the legal complications that can occur.
What is a mobility clause in employment contracts?
In simple terms, it is a clause you include in your employment contracts. This clause allows you to move the place of work for your employees. The move can be on a temporary or permanent basis.
It’s important to note that just because you have this clause, you cannot make unreasonable demands. More on this later.
Given the current situation in the UK, you may also ask the question:
“Why have a mobility clause in employment contracts during the COVID-19 pandemic?”
Depending on what you have in mind, a mobility clause may not be the most relevant tool. If you’ve moved to home-working, it pays to have a separate policy on this. If you are moving people around, consider whether this is strictly necessary and if the move is COVID-secure.
Mobility clause in an employment contract
Now you know what it is, you may wonder how to add a mobility clause in a contract.
The rules are different depending on whether you’re adding this to an existing contract or a contract for a new employee.
Adding this clause to an existing contract will be a significant contract change, and therefore will need the approval of the employee. Agreeing on a change to an employee’s contract and documentation can be a tricky task, so be sure to keep them informed and allow them adequate time to meet and discuss the change with you.
In other cases, the employee’s agreement will be determined in other ways. When employing someone new and the mobility clause is in their contract of employment, for example. By signing and accepting your job offer they’ll accept the terms of their contract.
Next, examine what your clause should look like, and provide a brief mobility clause employment contract example.
What does a mobility clause look like?
You should always make sure the clause is specific to your business and employees. The mobility clause wording should reflect this.
Mobility clause example
Considering the responsibilities Ms. Jane Doe has to undertake as part of their role, the company may require them to perform their duties across the UK, in any of the company’s sites. Consequently, Ms. Jane Doe agreed to accept any change in an assignment that meets such needs.
This mobility clause sample assumes that the employee in question must travel as part of their role. However, you may change this to work for an employee who typically works at one site, but may move in the foreseeable future.
In this scenario, the example mobility clause in the employment contract should reflect the intent to work from one site but have the potential to move if needed.
Mobility clause – employment law
If you’re uncertain as to the importance of this clause, you should turn to mobility clause case law.
Perhaps one of the most notable examples of this is Kellogg Brown & Root (UK) Ltd. v(1) Fitton and (2) Ewer.
Here, the company relied on a standard mobility clause in employment contracts:
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.
The company closed two of its UK offices and dismissed two employees who refused to work at the new site. The change would increase their commute time by 20-30 hours per week. Ultimately, the tribunal found that the instruction to move was unreasonable, and the dismissal was unfair. This entitled both employees to a redundancy payment.
For employment law and mobility clauses, one of the key areas you need to consider is a reasonable distance. How do you determine what is and isn’t reasonable? We’ll look at this in our next section:
Mobility clause – a reasonable distance
Reasonableness will always be fact-specific. Here are some factors you must consider before deciding to exercise your clause:
- How much notice does the employee need to make the move?
- How wide an area does the clause cover, is it unjustifiable for their role?
- Will you need to offer relocation costs?
- Is there a compensation scheme for employees who will have increased costs?
- How big is the change in the employee’s commute?
- Can you offer reduced or flexible working hours?
- Will there be significant costs to the employee(s) as a result of the move?
- Does the employee have personal circumstances that’ll make the move difficult, such as caring responsibilities?
There is no strict definition of what counts as a reasonable distance. A good measure is whether the relocation will cause a decline in the employee’s quality of life. Consider the above factors. If this will cause a decline, assume the move is unreasonable.
You can help the employee, through flexible working hours, paid incentives and compensation.
Attempting to force an employee to move via a mobility clause should be the last resort. If you are at this point, then we would recommend seeking independent advice from one of our HR experts on 01455 858 132
Finally, there are a couple of other areas in employment law you should consider.
Mobility clause – TUPE
Relocation is often a major factor of any TUPE transfer process. Although complicated, the key variable when moving employees is the mobility clause. Check the employees’ contractual terms. If they have mobility clauses, you’ll have an easier time transferring them to a new workplace.
If not, transferring employees to a new workplace isn’t impossible, you’ll just have to consult with them, or their representatives, to discuss their willingness to move. If not, you might pursue redundancy.
Whatever your situation, keep in touch with the outgoing employer to ensure you’re always following a fair process.
A well-drafted mobility clause that reasonably considers likely business needs and the employee’s role has a good chance of being enforceable. It gives you more certainty and control over your workforce and where you can require them to work.
We regularly advise organisations on these issues and if you are contemplating requiring an employee to move locations or going through a redundancy situation, we would strongly recommend that you take professional advice.
We will draft you a compliant mobility clause or review your current one. If you need someone to conduct meetings with the employee on your behalf, we handle that for you.
If you need further support drafting a mobility clause, our documentation team can help you. Our experts provide free help, support, and advice tailored to your requirements. Call us for free today at 01455 858 132
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