Home Office v Evans & Anor

The Court of Appeal allowed the Home Office's appeal and held that the employment tribunal erred in law in concluding that the employer was not entitled to invoke contractual mobility obligations. The court treated the dispute as turning on the interrelation between the contractual mobility clause (Staff Handbook, Section 12) and the Home Office Redundancy Notice (HON), concluding that the mobility clause could be lawfully invoked so long as the employer was not dismissing or proposing to dismiss the employees for redundancy. The court distinguished Curling v Securicor and held that Curling did not prevent an employer, prior to announcing dismissals, from electing to enforce mobility terms rather than pursue a redundancy procedure. Because the Home Office had exercised its contractual right to relocate staff rather than propose dismissals, the Redundancy HON did not apply and there was no fundamental breach of the implied term of trust and confidence that would justify constructive dismissal.

This was an appeal from an Employment Tribunal decision (upheld by the Employment Appeal Tribunal) that two Immigration Officers had been constructively and therefore unfairly dismissed when the Home Office invoked contractual mobility provisions on closure of Waterloo International Terminal (WIT) rather than following the departmental redundancy procedure set out in Home Office Notice 37/1995 (the Redundancy HON).

Background and parties: The claimants (Mr Evans and Mr Laidlaw), both Immigration Officers, were notified that on closure of static immigration control at WIT they would be transferred to Heathrow. They resigned and claimed constructive unfair dismissal, contending they were in a redundancy situation and that the Home Office had to apply the Redundancy HON (including consultation with unions and specified procedures) rather than rely on mobility clauses in their terms (Staff Handbook, Section 12).

Procedural posture: The Employment Tribunal found the claimants were in a mobile grade, that the Redundancy HON applied, that the Home Office deliberately invoked mobility to avoid redundancy consultation and thereby breached the implied term of mutual trust and confidence; it awarded that the claimants were unfairly constructively dismissed. The EAT dismissed the Home Office's appeal. Permission to pursue the appeal to the Court of Appeal was later granted and the Home Office appealed to the Court of Appeal.

Nature of the claim / relief sought: Claims for constructive unfair dismissal and breach of contract; claimants sought a finding that they had been unfairly dismissed following a fundamental breach resulting from failure to follow the Redundancy HON.

Issues framed:

• Whether the Home Office was legally entitled to invoke contractual mobility provisions in the circumstances of WIT's closure.
• Whether the Redundancy HON had become engaged so as to displace or constrain the mobility clause and require consultation and redundancy procedures instead.
• Whether the Home Office's conduct breached the implied term of mutual trust and confidence, justifying constructive dismissal.

Court’s reasoning (concise): The court treated Curling v Securicor as distinguishable: Curling prohibits 'dodging' only where the employer has already implemented redundancy procedures and only belatedly attempts to rely on mobility at tribunal; it does not prevent an employer, prior to announcing dismissals, from electing to enforce contractual mobility rights. The court held that the Redundancy HON applies when an employer is dismissing or proposing to dismiss on grounds of redundancy; it is not automatically engaged merely because a redundancy situation (a reduction in need for staff at a place of work) has arisen. Because the Home Office elected to exercise contractual mobility and was not proposing to dismiss the claimants, it was not required to follow the Redundancy HON. Consequently, there was no fundamental breach of the implied term of trust and confidence and no constructive dismissal.

Wider comment: The court recognised the practical tension between contractual mobility and redundancy procedures but emphasised that the choice rightly lies with the employer until such time as dismissal is proposed or implemented; Curling remains relevant only where the employer seeks to revert to mobility after having participated in redundancy procedures.

Appeal allowed. The Court of Appeal held that the employment tribunal erred in law in treating the Redundancy HON as engaged so as to bar the Home Office from invoking contractual mobility obligations. The court reasoned that the Redundancy HON is engaged where dismissals are proposed or implemented on grounds of redundancy; the Home Office had validly elected to enforce mobility rather than propose dismissals, and Curling v Securicor did not preclude that choice in the circumstances of this case. Accordingly, there was no fundamental breach of contract and no constructive dismissal.

First instance: Employment Tribunal (upheld claim for unfair constructive dismissal) - decision dated 6 March 2006. Employment Appeal Tribunal: Home Office appeal dismissed on 27 September 2006 (permission to appeal initially refused). Permission to appeal to the Court of Appeal was subsequently granted by Sedley LJ on 19 January 2007. Court of Appeal: appeal allowed ([2007] EWCA Civ 1089).