Home Office v Evans
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY,Lord Justice Laws,Mr Justice Blackburne |
| Judgment Date | 02 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1089 |
| Date | 02 November 2007 |
| Docket Number | Case No: 2006/2223 |
| Court | Court of Appeal (Civil Division) |
[2007] EWCA Civ 1089
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Mcmullen QC
UKEAT/0285/06/DM
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Laws and
Mr Justice Blackburne
Case No: 2006/2223
Mr James Goudie QC and Ms Sarah Moore (instructed by The Treasury Solicitor) for the Appellant
Mr James Tayler (instructed by Messrs Wedlake Bell) for the Respondent
Hearing dates: 3 rd July 2007
Judgement
Introductory
The question on this appeal is whether the employment tribunal (ET) erred in law in deciding that the Home Office was not legally entitled to invoke a contractual mobility obligation.
On 6 March 2006 the ET upheld claims for unfair constructive dismissal brought against the Home Office by the two respondent Immigration Officers (IOs) based at the Waterloo International Terminal (WIT), Mr Peter Evans and Mr Ian Laidlaw (the Claimants), who were required, on the closure of WIT, to re-locate to Heathrow Airport, where they had previously worked.
On 27 September 2006 the Employment Appeal Tribunal (EAT) dismissed an appeal by the Home Office and refused permission to appeal. Sedley LJ granted permission to appeal on 19 January 2007.
The Claimants' arguments in support of the appeal raise a general point on the interplay of express or implied mobility obligations and redundancy procedures contained in a contract of employment. An employer's requirement that an employee should move to a new place of work can generate legal wrangles and practical problems. In contemporary conditions many large employers naturally favour maximum flexibility in the workforce; but, for some employees, moving to a different place of work brings the prospect of an unwelcome disruption in a familiar working environment and of a potential adverse impact on the quality of the employees' working and private life. There may be knock on effects for family situations, financial commitments and social relationships.
Background facts
Some civil service grades (called mobile grades) are subject to mobility or transfer provisions. The ET rejected the Claimants' contention that they were non-Mobile grade employees and found that, as IOs in a grade above or equivalent to Executive Officer (EO), they were in a mobile grade.
In the case of Mr Evans, who began his employment with the Home Office on 13 November 1989, his letter of appointment confirmed that details of his conditions of service were to be found in the Staff Handbook, Section 12 of which is headed “Mobility”
“12.1 The Civil Service consists of mobile and non-mobile staff. In the Home Office mobile grades are broadly all those above or equivalent to EO together with:
Stores Officer Grade C and D
Support Managers 1 and 2
[immaterial provision omitted]
12.2 If your status is as a mobile member of staff you are liable to be transferred to any Civil Service post, whether in the United Kingdom or abroad…..”
The word “broadly” in Section 12.1 simply means “generally speaking” and was rightly read in this way by the ET when concluding that the Claimants were in a mobile grade.
Mr Evans understood the Staff Handbook to be part of his terms and conditions of employment. When Mr Evans was later supplied, at his request, with details of his current conditions of employment as an IO, it was confirmed in a letter of 9 December 1996 that the details of conditions of service applicable to all civil servants are to be found in the Staff Handbook. It was also stated in the letter that
“7. MOBILITY As an Immigration Officer you can be required to transfer to anywhere in the United Kingdom or abroad.”
The documentation of Mr Laidlaw's conditions of service was less explicit. Mr Laidlaw began his employment with the Home Office on 27 October 1969. His letter of appointment made no reference to the incorporation of the Staff Handbook or to mobility terms. However, he considered that his terms of employment were contained in the Staff Handbook. He had a copy of it, which he updated from time to time with amendments issued by the Home Office. In his evidence to the ET he accepted that the Staff Handbook was incorporated in his contract of employment. The ET found that the mobility clause in the Staff Handbook was clearly apt for inclusion in his contract of employment and that it was so incorporated.
The Home Office sought to enforce the Claimants' mobility obligations on the imminent closure of immigration control at WIT. The closure was the consequence of “juxtaposed controls” being put in place in Paris, Brussels, Lille and Calais, thus making static immigration controls at WIT unnecessary.
Between 31 March and 15 April 2004 the Home Office took the decision to close WIT. On 13 May 2004 the closure of WIT was announced and communicated to staff and the unions. In relation to the projected closure the Home Office sent a letter dated 13 May 2004 to all WIT staff. It stated that the implementation of the proposals would mean that there was no longer a need for the Immigration Service to base staff at Waterloo. The Home Office wanted to engage with staff individually to offer alternative employment that best matched individual preferences with available vacancies elsewhere in the Immigration Service. This would be carried out with regard to mobility arrangements for employees: mobile staff might be compulsorily transferred to meet business needs within their terms and conditions of employment; non-mobile staff might be transferred to posts within reasonable daily travelling distance. Members of staff were urged to engage as soon as possible with their managers and the HRD [Human Resource Department] advisors to discuss preferences and find suitable alternative posts.
Regular meetings were held with WIT staff regarding alternative postings. Despite repeated attempts to arrange meetings with them, the Claimants refused to engage in the process.
On 13 August 2004 the Home Office informed the Claimants that they would be transferred to Heathrow.
On 24 September 2004 the Claimants sent identical letters of resignation to the Home Office. On 30 September 2004 they presented almost identical Originating Applications to the ET alleging that they were non-mobile grade employees, that they had resigned from work on 28 September 2004 by reason of constructive dismissal and that they had been dismissed unfairly and in breach of contract.
ET Decision
The central question for the ET was whether the Home Office was legally entitled, in all the circumstances of this case, to invoke the mobility provisions. If it was entitled to do so, that was and is the end of the claim for constructive unfair dismissal. If, however, as the ET held, it was not entitled to do so, further questions had to be decided.
After a 7 day hearing the ET unanimously held that the Claimants were unfairly dismissed. It reached this result by the following route.
(1) The Home Office was not entitled to invoke the mobility provisions to transfer the Claimants from WIT to Heathrow. The situation on the closure of WIT was one of possible redundancy, which engaged the “Redundancy Principles and Procedures for Handling Redundancy” set out in a Home Office Notice 37/1995 (HON) (hereafter referred to as the Redundancy HON.) It was held that the Redundancy HON applied to the closure of WIT, that the Home Office failed to apply or follow it and that it had no intention of complying with it.
(2) The Home Office acted in fundamental breach of contract by deliberately invoking the mobility obligations in order to avoid having to treat the closure of WIT as a redundancy situation, to which the Redundancy HON applied, and in order to avoid the requirement of formal consultation with the Claimants' unions in accordance with Redundancy HON. In so doing the Home Office conducted itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee, which was to be implied into the Claimants' contracts of employment. The Home Office breached this implied term.
(3) The Claimants resigned promptly or within a reasonable time in response to the Home Office's breach of contract. This resignation was by reason of their constructive dismissal.
(4) The reason for the Claimants' dismissal was the Home Office's conduct in refusing to honour the Redundancy HON. This was not a potentially fair reason for dismissal, and the Home Office acted unreasonably in treating it as a sufficient reason for dismissing the Claimants. It denied that it was doing so or did so unreasonably in breach of contract or in a manner calculated and likely to destroy or severely damage the relationship of confidence and trust between employer and employee.
The Redundancy HON
As non-compliance by the Home Office with the Redundancy HON was the basis of the employment tribunal's decision on fundamental breach, it is necessary to examine in more detail its nature and provisions and why it features so prominently in this case.
For this purpose I shall assume in favour of the Claimants, without deciding, that the relevant provisions of the Redundancy HON were incorporated into their contracts of employment.
The Redundancy HON was issued by the Home Office after consultation with the relevant Trade Unions, but it was not an arrangement or agreement with them. It took effect from 1 April 1995 and is set out in...
To continue reading
Request your trial
-
Mr D Smith v 1) Carillion Ltd 2) Schal International Management Ltd
...be applicable where the facts would be equally explicable without the implication of such a contract. James v London Borough of Greenwich [2008] ICR 302 and Tilson applied. The Employment Tribunal did not err in holding on the facts before them that no contract between the Claimant and the ......
-
Kellogg Brown and Root (UK) Ltd v Mr P Ewer
...notwithstanding the background of the workplace closure (Curling and Ors v Securicor Ltd [1992] IRLR 549 EAT and Home Office v Evans [2008] ICR 302 CA applied). The ET’s finding on the Claimants’ entitlement to statutory redundancy payments could not stand, and the appeal would be allowed i......
-
Kellogg Brown and Root (UK) Ltd v Mr D Fitton
...notwithstanding the background of the workplace closure (Curling and Ors v Securicor Ltd [1992] IRLR 549 EAT and Home Office v Evans [2008] ICR 302 CA applied). The ET’s finding on the Claimants’ entitlement to statutory redundancy payments could not stand, and the appeal would be allowed i......
-
Mr Arshad v Kingdom Services Group Ltd: 2303152/2022
...on the contractual mobility procedure rather than the redundancy procedure in order to avoid a redundancy dismissal: Home Office v Evans [2008] ICR 302 (CA). In Evans, the employer had made it clear from the outset that it was following the mobility clause procedure and did not enter into a......
-
Mobility vs Redundancy: Invoking Mobility Obligations In Potential Redundancy Situations
...recent Court of Appeal case of Home Office v Evans [2007] EWCA Civ 1089 held that an employer was entitled to choose to invoke its employees' contractual mobility obligations rather than follow a redundancy The claimants were Immigration Officers at the Waterloo International Terminal ("WIT......