Mobility and relocation clause

For senior employees, you may deem it essential that they agree to be mobile to suit the needs of your business. A clear contractual right to require an employee to work at a new location is therefore necessary.

On the move

Employment tribunals are only prepared to imply very limited mobility clauses into employees’ contracts of employment, for example, a move around the corner. If you want the right to be able to move an employee further afield, either on a temporary or permanent basis, then you need to insert an express clause to this effect into the contract of employment. Our Mobility and Relocation Clause provides you with a number of options to consider in relation to the extent of a possible workplace move and it covers both temporary and permanent relocations, as well as a requirement for the employee to move home in defined circumstances following workplace relocation. It also includes a general residence requirement.

Trust and confidence

Be aware that, even with an express mobility clause, there is a restriction on the way you can enforce it as a result of the implied duty to maintain the relationship of trust and confidence. For example, it would be unreasonable to advise a London-based employee on a Friday that they have to relocate permanently to Leeds from the following Monday. You would be expected to consult with the employee and then give reasonable notice, particularly if the move is permanent. In addition, your decision to move the employee must be taken on reasonable grounds and you should first consider the employee’s individual personal circumstances. You should also look at effective ways of mitigating the impact of relocation on the employee and you may even have to assist with moving expenses. If the move is temporary, for example it’s just for a couple of weeks to cover someone else’s sickness absence, then giving a period of notice may not be practical. Our Mobility and Relocation Clause reflects this situation.

Moving an employee in reliance on an express mobility clause can still give rise to a potential indirect sex discrimination claim. This is more likely to be the case where you wish to move a woman who is not the primary wage-earner. You discriminate against a woman if you apply to her a provision, i.e. the requirement to relocate, which you would apply equally to a man but which is such that it would be to the detriment of a considerably larger proportion of women than of men, which you cannot show to be objectively justifiable regardless of the sex of the employee and which is to the employee’s particular detriment. A greater proportion of women than men are secondary wage-earners and thus fewer women than men would be able to comply with an instruction to relocate. Where an employee therefore appears reluctant to move, find out the reasons and see if you can address his or her concerns. Otherwise, be prepared to have to argue that your decision to relocate the employee was objectively justified!