Re-location & Flexibility
Under section 3 of the Terms of Employment (Information) Act, 1994, all employers are required to issue each individual employee with a Statement of Main Terms of Employment (SMT) no later than two months from the commencement of employment. Section 3 specifically states that this SMT must include “the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places”.
Many employers issue employees with a set place of work to the effect that they are required to work in one particular location. The problem with this is that a fixed place of work is a contractually agreed term and may be deemed completely inflexible (although the courts/tribunals may imply such a term where it is reasonable to do so). Accordingly, if an employer operates from multiple sites, there would be no obligation on a particular employee to transfer between work sites where their contract does not contain a relocation or flexibility clause.
Job flexibility clauses are deemed to be impermanent clauses whereby an employee will be expected to work between several sites as necessary. Essentially, an employee may be based regularly in a particular location but they may be expected to move between sites as necessitated by the needs of the business. A job flexibility clause should be drafted and accordingly, employers will be reserving a great deal of flexibility in terms of their dealings with staff and the coordination of working activities.
A relocation clause is often inserted into employee’s SMTs so that an employer may relocate an employee to other sites, branches etc. Such relocation clauses can reserve the right to move employees on a permanent basis and/or a temporary basis.
Usually such clauses would come with some form of geographical qualification, particularly if a right to move permanently is reserved, as it may, for example, be deemed unreasonable for an employer to insist on an employee to relocate from Donegal to Wexford.
Express Written Clause
It was stated previously that a court or tribunal may decide that there is an implied relocation/flexibility clause in an employee’s SMT. Such an approach is very much applied on a case-by-case basis and is extremely difficult to predict.
For example, in the case of O’Brien –v- Dunnes Stores (UD227/2001) the Employment Appeals Tribunal insisted that employers act reasonably in respect of job flexibility. They stated that it can often be the case that acting on an implied flexibility clause would be “fundamentally unfair” and that “any onerous condition in a person’s contract should always be evidenced in writing and signed by both parties.”
Accordingly, it is best practice for employers to ensure that such clauses are expressly included in the employees SMT and that both parties have signed the contract.
The Clause Must be Reasonable
In the case of Conway –v- Ulster Bank [UD471/1981] the Employment Appeals Tribunal in reaching its decision stated that “whilst transfer was a term of the contract, that is not to say that transfer exists as a right of the employer to be exercised by him without regard to competing personal rights or contractually to be exercised by him outside the reasonable limits for the exercise of that power expressly or impliedly imposed by the contract... In our view the right to transfer given in the contract of service gives no absolute power to transfer. Any concept of absolute power is an illusion and such power as exists cannot be exercised outside the law of this land which compels the recognition of personal fundamental rights.”
It is important for employers to recognise from this decision that while they may reserve the right to relocate an employee, such a term and condition may be struck down as invalid where the request to relocate is completely unreasonable when considering all the facts.
The case of Nolan –v- Hermans Limited (UD43/1987), for example, provides that where an employer seeks to unreasonably relocate an employee that the employee may treat such relocation as constructive dismissal. On the other side, in Allied Irish Banks Limited –v- Lupton (1984) it was held that where the transfer was not unreasonable, the transfer was not inspired by any malice towards the employee and the decision was made with a view to promoting the career prospects of the employee in question, that the employer could rely on its right to transfer.
When considering reasonability, employers should take into account the employee’s own personal circumstances in order to establish if an expectancy to move is reasonable. Furthermore, in terms of a permanent relocation, the employer must be able to evidence that such a move is necessary and not to the detriment of the employee in question.
What if an Employee Refuses to Relocate?
Where an employer expressly reserves a flexibility/relocation clause in a particular employee’s terms and conditions and that employee refuses to comply with a management instruction to temporarily relocate, then the employer may look to discipline that employee through company disciplinary procedures. Employers should familiarise themselves with the terms of the flexibility/relocation clause and also their disciplinary procedures before taking such action.
If an employer wishes to permanently relocate their entire business or part of their business to a brand new location and an employee refuses to relocate, then an employer may look to make that employee redundant. Section 7 of the Redundancy Payments Acts 1967-2007 clearly states that a genuine redundancy situation exists where “the employer has ceased or intends to cease to carry on the business in the place where the employee was employed”. The rationale here is that the position in a particular location is redundant and a new role has opened up in the new location.
It is also worth noting that if the relocation to the new site is in no way disadvantageous to the employee (e.g. travelling time, travelling expenses, childcare arrangements etc.) then there may be no obligation to pay that employee redundancy pay if they refuse to relocate. Section 15 of the Redundancy Payments Acts 1967-2007 highlights that an employee shall not be entitled to a redundancy payment if the employee unreasonably turns down an offer of suitable alternative employment. Whether or not the offer of alternative employment is deemed suitable is very much determined on a case-by-case basis and the employee’s own personal circumstances would be taken into account.