Home Office v Evans and another: [2007] EWCA Civ 1089

CA: Mummery, Laws LJJ and Blackburne J: 2 November 2006

The claimants were immigration officers whose contracts of employment with the respondent employer incorporated terms and conditions from the staff handbook and provided for mobility as to place of employment. Following the employer’s decision to close their current place of work, letters were sent to the claimants to discuss arrangements for employment at posts elsewhere, and they were urged to engage as soon as possible with their managers as to their preferences. The claimants refused to engage in the regular meetings between staff and managers, and on being informed by the employer three months later of their transfer to a new location they tendered letters of resignation. Upholding claims by the claimants for unfair constructive dismissal, the employment tribunal found that the employer was not entitled to invoke the mobility provision; that closure of the current place of employment created a redundancy situation to which the employer’s redundancy procedure, set out in an appendix to the staff handbook, applied; and that, in operating the mobility provision instead, the employer acted in breach of contract so as to avoid formal consultation with trade unions and thereby acted unreasonably and in breach of the implied term of trust and confidence. The Employment Appeal Tribunal dismissed an appeal by the employer, finding, on the basis of a note which had formed no part of the case before the employment tribunal, that the employer had given a representation to the trade unions that any decision to close would result in agreed redundancy procedures being followed.

The employer appealed.

The Court of Appeal held:
An employer was not precluded from invoking a mobility clause when a redundancy situation might arise on the closure of part of a business, and there was no question of the employer having left it too late to invoke the claimants’ mobility obligations, or having waived its right to invoke them. From the time of its announcement of the decision to close the claimants’ place of employment the employer had made it clear to the claimants that it was invoking the mobility obligations and would be following that procedure, not the redundancy procedure, which it consistently did. While the employer was bound to follow the redundancy procedure in the event of dismissals on grounds of redundancy, if it preferred to invoke the mobility provisions in order to avoid redundancy dismissals, it was entitled to make that choice, and, as it took that course, it was unnecessary to apply the redundancy procedure to the claimants. The employer was, therefore, entitled in law to operate the contractual mobility provisions and procedure, and, accordingly, the claimants had not been constructively dismissed.

The appeal was allowed.

Appearances: James Goudie QC and Sarah Moore (Treasury Solicitor) for the employer; James Tayler (Wedlake Bell) for the claimants.