Care providers are diverse in their operations and often have a variety of locations from which they operate. Support workers and carers may be specifically assigned to a singular residential care home or may be expected to mobilise between various service users’ home addresses. It is not uncommon for support workers to have an established place of work with the option of being deployed to some other location. However, when an employee has been allowed to work from a single location for a period of time, moving them to a new place of work can quickly become a contentious issue.
In such a scenario, the first question to ask is whether the employee’s contract of employment contains a clause allowing flexibility, a mobility clause, which allows the employer to change the employee’s place of work. Under normal circumstances the change of a key term, such as an employee’s place of work, hours or pay, would constitute a change in their terms and conditions. A variation of this type would be ineffective and a potential breach of contract unless both parties agree to such a change. However, where a mobility clause is included in the employment contract, the employee may already be deemed to have consented to such a variation, subject to certain requirements.
Flexibility clauses, such as a mobility clause, operate on two principles:
- The greater the detriment, the more narrow the interpretation by the courts; and
- They are subject to the implied terms of the employment relationship.
An open ended mobility clause, which states that an employer can change the employee’s place of work without restriction, would be unenforceable. However, a mobility clause that is limited and carefully drafted, for example “within reasonable travelling distance” or “within 10 miles”, may well be relied upon and be enforceable. If possible, employers should clearly set out the limits on changes to working locations that may be imposed, while tapering this with the need to maintain flexibility for unforeseen circumstances. Where an employer has multiple sites, it may be that they are able to name the alternate locations where an employee might be asked to work within the contract, or restrict this to a specific area or distance. In any event, an employer must act reasonably when relying on a mobility clause. The employer should ideally give the employee as much notice as possible and consult with the employee to explain to the employee the reasons for the change of their workplace.
Sometimes, a proposal to change employees’ places of work may give rise to a redundancy situation, such as where the need for the number of employees has reduced or because there is no longer a need for work to be carried out a particular location. In these circumstances, a mobility clause may be relied to redeploy staff elsewhere rather than being obliged to make redundancies, along with (sometimes quite expensive) redundancy payments. Such flexibility may allow employers to be more robust when making bids for care contracts which otherwise may be hindered by employees’ rights on the transfer of their employment to a new employer, including the protection of their terms and conditions under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).
If an employee’s contract does not contain a mobility clause, and they do not agree to the proposed move, then the employer would need to consider whether to dismiss the employee and offer re-engagement at a new location. Any attempt to unilaterally impose a change in terms and conditions may be a breach of contract by the employer, enabling the employee to resign and claim constructive unfair dismissal. If the employer cannot demonstrate that a redundancy situation exists, or there is some other substantial reason for dismissal, then it is probable that such a dismissal or imposition would be deemed unfair.
In the case of Home Office v Evans (2007), the Court of Appeal confirmed that an employer is legally entitled to invoke a mobility clause in a redundancy situation to negate the obligation to make a redundancy payment, subject to the parameters of reasonableness outlined above.
It is important that employers recognise the importance of providing some flexibility in their relationships with employees, including the use of mobility clauses. The needs of service users and available funding are always subject to change and, as local authorities face national pressure to reduce costs and streamline services, maintaining a diverse and flexible workforce will remain an integral characteristic of the care sector.
