The Terms of Employment (Information) Acts 1994 and 2001 specifically provide that an employer is obliged to provide an employee with a statement in writing no later than two months after the commencement of employment containing certain particulars in relation to his or her employment. One of the particulars which must be furnished is the place of work of the employee or alternatively a statement specifying that the employee is required or permitted to work at various places.

In addition to specifying the place of work an employer may seek to incorporate an express relocation or mobility clause in the employee's contract. Such clauses would typically entitle the employer to relocate or move the employee to other offices or branches of the employer within a specified area.

If the contract of employment does not contain a mobility clause, a limited mobility requirement may be implied by the Courts who will consider whether it is reasonable in the circumstances to require the employee to relocate to a given location.

If an employer seeks to relocate or transfer an entire business or part of a business to another location and the employee does not wish to transfer, it is arguable that the employer may be justified in dismissing the employees in question by reason of redundancy. The definition of redundancy in the Redundancy Payments Acts 1967-2007 specifically provides that a genuine redundancy occurs where "the employer has ceased or intends to cease to carry on the business in the place where the employee was employed".

What is evident from the case law in relation to mobility and relocation is that such cases are very much decided on their own facts. A common thread running through all such cases however, regardless of whether there is an express or implied mobility clause, is the requirement that the employer acts in a reasonable manner. We have examined some of the cases in this area below.

The case of O'Brien v Dunnes Stores (UD227/2001) illustrates how attempts by an employer to implement a transfer without a written mobility clause may be determined unfair. In reaching its decision the Employment Appeals Tribunal stated that having given careful consideration to the mobility element of the contract, which was not reduced to writing, it regarded the employer's actions in transferring the employee as "fundamentally unfair." The Tribunal continued by stating that "any onerous condition in a person's contract should always be evidenced in writing and signed by both parties."

It would appear however that the inclusion of an express contractual term allowing the employer to transfer the employee to another location at its discretion will not always be upheld by the Employment Appeals Tribunal and a lot will turn on the specific facts of the case.

In the case of Conway v Ulster Bank (UD471 1981) the Tribunal in reaching its decision stated that "whilst transfer was a term of the contract, that is not to say that transfer exists as a right of the employer to be exercised by him without regard to competing personal rights or contractually to be exercised by him outside the reasonable limits for the exercise of that power expressly or impliedly imposed by the contract……. In our view the right to transfer given in the contract of service gives no absolute power to transfer. Any concept of absolute power is an illusion and such power as exists cannot be exercised outside the law of this land which compels the recognition of personal fundamental rights."

In the Conway case the employee objected to the unilateral imposition of the transfer without any consultation as she believed the transfer was unreasonable and unnecessary. In such circumstances an employee may allege that the employer's action amounted to constructive dismissal. However the onus will be on the employee to show that he or she acted reasonably in resigning due to the employer's conduct in requiring the employee to relocate.

The Tribunal has previously upheld claims for constructive dismissal brought by employees where a transfer has been imposed upon them. In the case of Nolan v Hermans Limited (UD43/1987) the Tribunal held that the employee was entitled to treat the change in location as constructive dismissal notwithstanding the employer's assertions that there was a company policy permitting transfer and that this was well understood by all employees. It was held that the transfer amounted to a unilateral change in the employee's place of employment where she had worked for the previous ten years.

Contrary to the above, the case of Allied Irish Banks Limited v Lupton (1984) illustrates that where the power to relocate or transfer is exercised reasonably, such actions may be permitted. In this High Court case Murphy J was of the view that there was no justification in the particular circumstances to infer an intention on behalf of either the employer or the employee that the decision to transfer should be subject to the employee's right to be heard in respect of the decision generally or the particular location chosen on the employee's behalf. Murphy J was of the view that as the transfer was not inspired by any malice towards the employee and the decision was made with a view to promoting the career prospects of the employee in question, that the employer could rely on its right to transfer.

For further information please contact Jennifer O'Neill.

May 2010.