Network Rail has made a bold move by suggesting staff will have to live within 75 minutes of its new national centre in Milton Keynes, or 90 minutes away for managers. Legally speaking, employers do have a few options about how to change where staff work or restricting their commuting times but it's complicated.
Often companies will seek to make changes to employee contracts, commonly using what are referred to as 'express mobility clauses'. But this is not carte blanche for employers and there are plenty of reasonable things that companies must do as part of the process (more on this later).
Another option for employers is to simply obtain consent from employees, so if both parties are content then it’s a done deal. For instance, if a company decides to move to a new office in the home counties and that suits the workforce who are tired of commuting then everyone is happy.
Finally, companies can go down the route of dismissing and then re-engaging employees. But this is the nuclear option in so many ways. It’s not just risky from an employee relations perspective, but it also potentially gives employees grounds for unfair dismissal claims.
But what is reasonable?
Whatever the basis for making changes to conditions, employers have to act reasonably. Of course the assessment of 'reasonableness' is subjective but if the change is deemed unreasonable then there are again risks of constructive unfair dismissal claims.
Businesses need to think about whether they could or should offer assistance or adjustments to make the change reasonable or more reasonable for staff. Perhaps they could reimburse additional travel costs or allow more flexible working hours to accommodate childcare arrangements?
Is there a need to consult?
Employers should consider whether they need to consult, either with individuals or as a collective. If the latter is the case and large numbers of employees are involved then this could significantly delay the process.
Finally, businesses must ensure the proposed changes do not unfairly impact on any protected group such as age, race, religion, disability, sex or sexual orientation. One argument for women in this case could be that the requirement to move is indirectly discriminatory as it will have a greater adverse impact on secondary earners and more women than men are secondary earners.
So, before you take the relocation leap:
- Tread carefully
- Be reasonable
- Take legal advice!
Ann Bevitt is an employment partner at law firm Morrison & Foerster