Mobility clauses and changing an employee's job rolePosted in : Seamus Says - Employment Law Discussion on 1 December 2017
Q. Can an employee be moved where their contract allows them to be moved to other duties deemed appropriate to their grade, for example outside of their functional area?
Seamus: Yeah. I think that there are two questions here that have been asked. One about mobility and then second about changing their job role in terms of their additional duties that they're going to be provided with. So the first protocol - go back and look at the contract, make sure that there is a suitable and a well-drafted mobility clause within the contract. That said, just because there is a mobility clause in the contract does not mean that you can force the employee to move to, you know, another store or another office or something along those lines.
Then you'd have to sit down with the employee, consult with the employee. They may have very good reasons as to why they couldn't. For example, maybe if they are suffering from a disability or that they have specific family circumstances, where they're a carer or something like that. And if you enforce that, there could be potential comeback through discrimination claims. So it's about looking at the overall circumstances rather than just simply saying this has happened and you're going.
Scott: Even if you take out the discrimination area, the courts would very much look at it, when it comes down to reasonableness, on a subjective basis; is it reasonable for that employee to be moved?
Scott: So you could move somebody two miles in a mobility clause, but if it's two miles and there's no bus to get them from where they live to where they are supposed to work, it's not reasonable, you know?
Seamus: Yeah. And how that would be facilitated. The other side of that is in relation to any amendment to their duties and responsibilities. Again, whether they would see that as a fundamental amendment to their terms and conditions of employment. You need to carefully consider that they have the suitable skills and experience in order to undertake the additional duties, and that there's a period of training that would be provided for in relation to that as well.
It's not an automatic decision that would be made and told to the employee. I think that there would be that period of consultation with the employee and helping the employee to under the reasons for it, why it's necessary and how they can continue to contribute in the role for the business.
Scott: There's a kind of theme coming through all of these, which is each case on its merits. And if we move on to disciplinary allegations here, we've probably got one, which one size does fit all.
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