Home Office v Evans & Anor

A contractual mobility clause may be invoked to move employees when the employer chooses to avoid dismissals on grounds of redundancy. The existence of a redundancy situation, or an earlier internal plan to use redundancy procedures, does not itself engage a contractual redundancy procedure. The decisive question is whether the employer is dismissing, or proposing to dismiss, employees by reason of redundancy. An employer may change its mind before announcing the closure and invoke mobility, provided it has not already implemented the redundancy procedure or waived the contractual right. The no-dodging principle in Curling v Securicor is confined to a case where redundancy procedures had been implemented and the employer sought to rely on mobility only at the tribunal hearing. A mobility transfer in those circumstances does not constitute constructive dismissal.

Immigration Officers based at Waterloo International Terminal were told that they would be transferred to Heathrow after Waterloo immigration controls closed. Their contracts included mobility provisions in the Staff Handbook. The court assumed, without deciding, that the Home Office’s Redundancy Principles and Procedures for Handling Redundancy were also incorporated.

The employees resigned and brought claims for constructive unfair dismissal. They argued that the closure created a redundancy situation and that the Home Office was required to follow the redundancy procedure, including consultation with trade unions. The Employment Tribunal upheld their claims. The Employment Appeal Tribunal dismissed the Home Office’s appeal under UKEAT/0285/06/DM. The central issue before the Court of Appeal was whether the Home Office could invoke the contractual mobility provisions instead of treating the employees as dismissed or potentially dismissed by reason of redundancy.

Disposition. Mummery LJ, with Laws LJ agreeing, allowed the appeal. Blackburne J also agreed, adding comments on the contractual status of the second claimant and the alleged breach of trust and confidence. The claimants were not constructively dismissed and their unfair-dismissal claims failed.

1. Appellate restraint. The EAT was not entitled to make a factual finding that a representation had been made at a union meeting when the point had not been argued before the ET or EAT, had not been supported by evidence before the ET, and had not been addressed in the parties’ submissions.
2. Mobility and Curling. Curling v Securicor [1992] IRLR 549 did not establish that a mobility clause could never be invoked where a redundancy situation existed. It concerned an employer that had already implemented redundancy procedures, in which employees had participated, and had raised contractual mobility only at the tribunal hearing. The no-dodging principle therefore did not prevent the Home Office from changing its earlier internal plan before announcing the closure.
3. Redundancy procedure. By reference to section 139 of the Employment Rights Act 1996 and section 188 of TULRA, the redundancy procedure was required where employees were dismissed, or proposed to be dismissed, on grounds of redundancy. A redundancy situation or staff surplus alone was insufficient. The Home Office was entitled to invoke the mobility clause to avoid redundancy dismissals, so the Redundancy HON was not engaged.
4. Contractual mobility. The word broadly in the mobility clause was descriptive rather than exclusive. Immigration Officers above or equivalent to Executive Officer grade were mobile staff, absent any contrary factual finding. A letter reiterating the Home Office’s consistent position did not constitute a fundamental breach of the implied term of mutual trust and confidence.

• Court of Appeal (Civil Division). Allowed the Home Office’s appeal and held that the claimants had not been constructively dismissed.
• Employment Appeal Tribunal. On 27 September 2006 dismissed the Home Office’s appeal and refused permission to appeal under UKEAT/0285/06/DM. Permission was subsequently granted by Sedley LJ.
• Employment Tribunal. On 6 March 2006 unanimously upheld the claimants’ constructive unfair-dismissal claims.