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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Home Office v Evans & Anor [2007] EWCA Civ 1089 (02 November 2007)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/1089.html
Cite as: [2008] ICR 302, [2008] IRLR 59, [2007] EWCA Civ 1089

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Neutral Citation Number: [2007] EWCA Civ 1089
Case No: 2006/2223

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
02/11/2007

B e f o r e :

LORD JUSTICE MUMMERY
LORD JUSTICE LAWS
and
MR JUSTICE BLACKBURNE

____________________

Between:
THE HOME OFFICE
Appellant
- and -

MR PETER EVANS
MR IAN LAIDLAW
Respondent

____________________

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 : 3rd July 2007

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    LORD JUSTICE MUMMERY :

    Introductory

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. Background facts

  6. 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.
  7. 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"
  8. "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….."
  9. 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.
  10. 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
  11. "7. MOBILITY As an Immigration Officer you can be required to transfer to anywhere in the United Kingdom or abroad."
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. On 13 August 2004 the Home Office informed the Claimants that they would be transferred to Heathrow.
  17. 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.
  18. ET Decision

  19. 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.
  20. After a 7 day hearing the ET unanimously held that the Claimants were unfairly dismissed. It reached this result by the following route.
  21. (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

  22. 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.
  23. 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.
  24. 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 Appendix 6 of the Staff Handbook.
  25. The provisions of the Redundancy HON follow the statutory definition of redundancy. Thus paragraph 5 states that "under that legislation, redundancy arises when staff are dismissed in the following circumstances." There are, however, some differences from the legislation. The Redundancy HON sets out the principles and procedures which will be applied in the event of redundancies "or possible redundancies" within the Department (paragraph 1).
  26. The obligation to consult is in the following terms-
  27. "The Department will consult both the relevant local Trade Union representatives, local Trade Union Side and Departmental Trade Union representatives at the earliest opportunity where staff surpluses arise or it is evident that they are likely to arise. This applies irrespective of the number of staff likely to be affected or whether redundancies will be voluntary or compulsory. Full details will be provided in writing to the trade unions. Consultation will be with a view to reaching agreement, will continue throughout any redundancy exercise and will cover all aspects including measures to avoid redundancies (see Annex A for consultation agreements)".
  28. In paragraph 8, which deals with "Measures to avoid compulsory redundancy" reference is made to the situation "where staff surpluses arise or it is evident that they are likely to arise" and to taking steps "which will avoid or minimise compulsory redundancies."
  29. These paragraphs are relevant to the finding of the ET that the Home Office (Human Resource Department) had planned to go down the redundancy route, offering suitable alternative employment to affected employees and dismissing as redundant those who refused such offers. The tribunal concluded that, as early as April 2004, a redundancy situation existed at WIT. The tribunal stated (paragraph 9.3.4)
  30. "We find that sometime between 31 March 2004 and 15 April 2004 [the Home Office] decided that WIT should close, that all employees at WIT would be offered in the [Home Office] words "suitable" alternative employment and that those employees who refused offers of alternative employment would be dismissed as redundant.
    We find that this was a situation and an event giving rise to redundancies and/or possible redundancies."
  31. The ET also found that sometime between the end of April and 13 May the Home Office changed its mind. After taking legal advice the Home Office decided that it would not apply the Redundancy HON. It would invoke the mobility provisions to transfer the Claimants elsewhere in the Home Office organisation and would not, therefore, be proposing to dismiss any employees.
  32. The ET concluded that the Home Office was not entitled subsequently to change its mind in this way, so as to rely on the mobility provisions when it announced the closure of WIT on 13 May 2004.
  33. Paragraph 9 of the Redundancy HON, which is headed "Transfers", is a particularly important provision in the reasoning of the ET on this point and for the Claimants' contention that the provisions of the Redundancy HON applied and expressly refer to the cases of "mobile staff" and "non-mobile staff."
  34. "9. The Department will consider whether any surplus staff can be deployed elsewhere within the Home Office or elsewhere. All staff are obliged to accept suitable alternative employment and anyone who unreasonably refuses to do so will lose any entitlement to redundancy compensation. If necessary, mobile staff can be required to take suitable alternative employment within their grade or comparable grade anywhere. Non-mobile grades may be required to accept suitable alternative employment within a reasonable daily travelling distance from their home. Redundant non-mobile staff who wish to be considered for posts involving a move of home may apply for a transfer on permanent compulsory transfer terms, and where possible this will be arranged if a suitable vacancy can be found."
  35. In considering the implications of the Home Office's change of mind the ET cited and purported to apply Curling v. Securicor [1992] IRLR 549. In that case the employer's change of course from redundancy to invoking a mobility clause was first raised at the hearing in the industrial tribunal (as the ET was then called.) The EAT concluded in Curling that the principle that the employer cannot "dodge between the two" (i.e. mobility and redundancy) applied to the right of the Trade Unions to be consulted on proposed redundancies or, as in this case, possible redundancy.
  36. The ET then considered paragraph 9 of the Redundancy HON and said at page 19 of its decision-
  37. "In any event the use of the mobility clause is something which is specifically referred to in the Redundancy HON itself (para 9) as a measure that the [Home Office] will consider "if necessary." It is clear to us that where the Redundancy HON applies and there is a staff surplus the mobility clauses in employee's contracts may be invoked "if necessary" as in this case where there is no particular requirement in other parts of the [Home Office] business for Immigration Officers but a need to accommodate surplus staff elsewhere in the business. It is clear from the fact (6.23) that at 13 May the future of 70 staff had still not been determined and from the [Home Office] continuous subsequent references to "finding" alternative postings for staff, that the [Home Office] was invoking the mobility clause not to meet any particular business need but as a means of "finding" posts for surplus staff following the closure of WIT. This is the use of the mobility clause to deal with surplus staff in accordance with the Redundancy HON which we contrast with the use of the mobility clause in a non-redundancy situation to meet the genuine changing needs of the business. It is not a question of whether the Redundancy HON overrides the mobility clause or vice-versa. The use of the mobility clause "if necessary" is an integral element of the Redundancy HON. Consequently in circumstances in which the Redundancy HON applies the application of the mobility clause "if necessary" is a matter which the [Home Office] must consider as part of its consultation with the relevant Trade Unions in accordance with the Redundancy HON."

    EAT Decision

  38. The EAT upheld the ET's decision, though not on precisely the same grounds.
  39. One ground of the Home Office appeal to this court is that the EAT judgment dismissing its appeal was based, in part, on a finding of fact that formed no part of the Claimants' case in their originating applications, in their evidence or in their submissions to the ET. Nor was it even raised in the Claimants' submissions to the EAT.
  40. The EAT judgment (paragraph 30) referred to and relied on the following note made by the Trade Union representatives of a meeting on 3 March 2004 attended by representatives of the trade unions and the Home Office
  41. "Managed postings of WIT staff-ST [Stephen Taylor, a senior union official] asked what the situation was with the closure of WIT. RC [Roger Cockerell, a Home Office official] advised that a firm decision to close WIT had not been taken. He was aware that if such a decision was taken, agreed procedures would be followed; it was understood that a 6 month consultation process with the relevant unions would be required. He confirmed that the lease of the UKIS accommodation expires on 15 November, and this had a 6 month clause in which any extension to the lease would have to be finalised. He believed that given the moves towards juxtaposed controls there would not be the need for all the current accommodation. Consideration was being given to the ports viability and its component parts."
  42. The note, which was not mentioned in the ET decision, did not refer to the Redundancy HON or to the mobility provisions in the Staff Handbook or in contracts of employment.
  43. The meeting referred to in the note was described by the EAT as involving a "representation to the workforce" giving the impression to the Claimants, through their union, "that if a decision was taken to close WIT the agreed procedures would be followed (the agreed procedures are the Redundancy HON)."
  44. As for the Home Office submission that it was entitled to change its mind before finally and publicly announcing its position on 13 May, the EAT commented that this represented "the kind of dodging" which was found to be unacceptable in Curling. The Home Office had invoked the mobility provisions in circumstances that were contrary to the principle laid down in Curling.
  45. This aspect of the Home Office appeal can be dealt with quite shortly at this point. The focus of argument is on the decision of the ET from which an appeal only lies on a question of law. Of course, as I have said in a number of cases, the judgments of the EAT, where judges and lay members with appropriate experience sit together, are entitled to great respect, but in general the EAT decision is not, except in a formal sense, the decision under appeal and the EAT's jurisdiction on appeal, like that of this court, is more restricted than that of the ET at first instance.
  46. Mr Goudie QC for the Home Office objected to the EAT's finding that a representation was made at the meeting on 3 March 2004. As he pointed out, the ET, which heard all the evidence, made no such finding of fact. The EAT, which had heard no evidence at all and no argument on this point, was not entitled to make such a finding.
  47. Mr Goudie added that the making of the alleged representation was denied by the Home Office; that the alleged representation found by the EAT was unclear and ambiguous; that no detrimental reliance had been placed on it by the Claimants; that the Home Office had not waived its right to rely on the mobility provisions; and that it was not inequitable for the Home Office to change its mind and decide to invoke the mobility provisions before it had announced the closure of WIT and before it had implemented a redundancy procedure.
  48. Mr Tayler appearing for the Claimants confirmed that he had not taken a point before the ET or the EAT on the making of a representation at the meeting of 3 March 2004. He had made no submissions on the point to the EAT and made no detailed submissions on it in this court.
  49. In my judgment, the EAT's ruling based on the note of the meeting of 3 March 2004 cannot be supported, based as it is on factual and legal points which were not argued by the parties in the ET or the subject of any evidence to it and were not argued in the EAT.
  50. Discussion and conclusion

  51. The key question, as stated above, is whether the ET erred in law in holding that the Home Office was not entitled to invoke the mobility provisions in relation to the Claimants. With the agreement of counsel we heard full and valuable submissions from each side on the question whether the Home Office was legally entitled to invoke the mobility provisions in relation to the Claimants. We would then decide whether or not it was necessary for the court to hear full argument on the remaining points, which would, or might, arise if the court upheld the conclusion of the tribunals below on this point.
  52. At the end of argument on the mobility provisions the court indicated to counsel that full argument on the other points covered in the skeleton arguments was not required.
  53. I will discuss the rival arguments on the mobility point under two headings, the first on the main authority cited and the second on the crucial Redundancy HON document.
  54. Curling v. Securicor

  55. The first point is whether the ET misdirected itself in law on the application of Curling v. Securicor to the facts found in this case. The ET and the EAT treated Curling as authority for the "no dodging principle." The Home Office was then held to have breached the principle by attempting to switch from its initial plan to follow a redundancy procedure to reliance on the mobility obligations in the Staff Handbook.
  56. In my judgment, the Curling case does not assist the Claimants. The ET did not properly understand or apply it. While correctly noting that the employer in that case changed its mind at a much later stage than the Home Office had done in this case, the ET went on to quote a passage (paragraph 14) from the EAT judgment in Curling for the principle that, when closing down part of a business,
  57. "What the employers cannot do is dodge between the two attitudes and hope to be able to adopt the most profitable at the end of the day."
  58. The "two attitudes" were, on the one hand, invoking the mobility clause in the contract to require the employee to go to a new location or job; and, on the other hand, relying on alternative suitable offers of employment as a defence to claims to a redundancy payment.
  59. The ET's reasoning was that, after the circumstances envisaged in the legislation and the Redundancy HON have occurred, there was an obligation to consult-
  60. "…it would render the duty to consult farcical if the employer was able to 'dodge between the two attitudes and hope to be able to adopt the most profitable at the end of the day.'…..The employer must decide which attitude to adopt at the time the obligation to consult arises. The [Home Office] attitude at the time it decided to close WIT was that it proposed to proceed not by use of the mobility clause but by termination and the offer of suitable alternative employment. That decision was made between 31 March and 15 April …..It is that decision which engaged the Redundancy HON and the obligation to consult the relevant unions contained in the Redundancy HON." (see page 20 of the ET decision)
  61. It was submitted that the fact that the change of mind was the result of legal advice did not prevent the ET from inferring that the Home Office decided to invoke the mobility clauses in order to avoid having to enter consultation with the relevant Trade Union under the Redundancy HON.
  62. In my judgment, the ET was wrong in law on this point.
  63. First, the question was not the Home Office's motive for its change of mind, but whether it was legally entitled to invoke the mobility clause. It was so entitled.
  64. Secondly, the ET was wrong to treat Curling as authority for the proposition that the employer is not legally entitled to invoke a mobility clause when a redundancy situation might arise or has arisen on the closure of part of a business. In my judgment, Curling is a case in which the employer was not entitled to rely on the mobility obligations at the hearing in the tribunal, as it had already implemented the redundancy procedure, in which the employees had participated, and had not sought to rely the contractual mobility obligations until the hearing, by which time the tribunal considered that it was too late to raise a new point.
  65. In this case there is no question of the Home Office dodging from one contractual procedure to another, having left it too late to invoke the mobility obligations, or having waived its right to invoke them. From the time of its staff announcement of the decision to close the WIT the Home Office 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.
  66. In short there was nothing in the Curling decision or in the "no dodging" principle to stop the Home Office from invoking its contractual right to enforce the mobility obligation in the circumstances of this case.
  67. Application of the Redundancy HON

  68. The second point is whether the Redundancy HON provisions apply. If they do not apply to the facts found in this case, the claim for unfair dismissal must fail. The whole basis of the Claimants' case is that constructive dismissal was their prompt and justified response to Home Office's fundamental breach of contract in refusing to accept that a redundancy situation existed or to consider that the Redundancy HON applied to them and its insistence on invoking the mobility provisions.
  69. Mr Tayler argued that the ET correctly concluded that the Redundancy HON applied to the Claimants' case. He distinguished between a "redundancy situation" and dismissals by reason of redundancy.
  70. A redundancy situation is a state of affairs that occurs where, for example, the employer intends to cease to carry on the business for which the employees were employed at the place at which they were employed.
  71. The occurrence of a redundancy situation does not necessarily give rise to dismissals by reason of redundancy. For example, the purpose of agreed or statutory consultation procedures is to avoid dismissals and he submitted that the case for the Home Office produced the surprising result that it was not obliged to do more than inform the Claimants that they had been relocated to anywhere in the United Kingdom or abroad on the closure of WIT without the need to consult them or their trade union representatives.
  72. He strongly resisted the Home Office contention that the Redundancy HON was not apt for incorporation in the Claimants' contracts. On this point I am prepared to assume for the purposes of this case that the ET was entitled to conclude that the Redundancy HON was incorporated. I am prepared to make this assumption as, in my view, the appeal really turns on the interrelation between the redundancy procedure and the mobility clause.
  73. On this point Mr Tayler emphasised that a significant difference between a contractual redundancy procedure and a mobility clause is that the operation of the redundancy procedure is automatically engaged by the occurrence of an event (i.e. a redundancy situation), whereas a mobility clause must be invoked by the employer.
  74. In this case the decision of the Home Office to close WIT meant that its requirement for staff at WIT had ceased. The Home Office intended to cease to carry on the business for which the Claimants were employed at the place at which they were employed. A redundancy situation occurred. As result the Redundancy HON was engaged prior to any attempt by the Home Office to invoke the mobility obligations. Where a redundancy situation had occurred it must have been the intention of the parties that it would be dealt with in accordance with the Redundancy HON under which mobility was provided for in clause 9, which limited any transfer to suitable alternative employment and had to be operated within the consultation framework and its other provisions.
  75. The Home Office had informed the Trade Unions that it would enter into consultation. If, which was denied, the Home Office had any choice whether to proceed under the mobility clause or the Redundancy HON, it had made an election for the latter course.
  76. By repeatedly refusing to operate the Redundancy HON procedure the Home Office was in fundamental breach of the Claimants' contracts of employment.
  77. Despite Mr Tayler's well argued submissions I am unable to accept that they or the decisions of the tribunals below are legally correct on this short but important point.
  78. In my judgment, the legal position is that, as explained by Mr Goudie by reference to the statutory obligations in section 139 Employment Rights Act 1996 and section 188 TULRA as reflected in the Redundancy HON, the Home Office was bound to follow the redundancy procedure in the event of dismissals on grounds of redundancy or when dismissals on account of redundancy are proposed. If, however, Home Office preferred to invoke a mobility clause in order to avoid redundancy dismissals, it was entitled to make that choice. As it took that course, then it was unnecessary to follow the redundancy procedure and to apply the Redundancy HON to the Claimants.
  79. The position in this case is not altered by the fact that internally the Home Office initially envisaged following a redundancy procedure if the WIT were to close. The Home Office was not prevented from changing its mind prior to the announcement of the decision to close the WIT to the Claimants and other staff. After the announcement on 13 May 2004 it took steps to implement the contractual mobility procedure, including a consultation in which the Claimants refused to take part.
  80. The flaw in Mr Tayler's analysis is the non sequitur that the Redundancy HON applied because the closure of WIT created a redundancy situation and with it the possibility of dismissals. This analysis omits the vital prior question whether the Home Office was dismissing, or proposing to dismiss, the Claimants by reason of redundancy. Only if a dismissal has taken place, or is proposed, is it necessary to consider whether redundancy (a redundancy situation) is the reason for the dismissal and whether the consultation obligations are engaged.
  81. Mr Goudie accepted that, if the Home Office had reached the stage of proposing to dismiss the Claimants, then it would have been obliged to find them suitable alternative employment pursuant to the procedure in the Redundancy HON. However, by the time that the closure of WIT was announced the Home Office had decided to exercise the contractual right to move them in accordance with their mobility obligations. It was not proposing to dismiss them. The Redundancy HON did not apply.
  82. Result

  83. I would allow the appeal.
  84. The ET erred in law for the reasons stated above. The Claimants were not constructively dismissed. Their claims for unfair dismissal fail.
  85. Lord Justice Laws:

  86. I agree.
  87. Mr Justice Blackburne :

  88. I also agree. I add a few comments of my own in deference to the two tribunals below with whose lengthy and careful judgments I feel unable to agree.
  89. Mummery LJ has set out the relevant background to the appeal and summarised the reasoning of the Employment Tribunal ("the ET") which I shall not repeat.
  90. Assuming, without deciding, that the Redundancy HON was included in the claimants' contracts of employment and that the paragraphs in it to which Mr Tayler referred were apt for incorporation into those contracts, the central issue for decision concerns the interrelationship between paragraphs 7 to 9 of that notice (set out in Mummery LJ's judgment) and paragraph 12 ("the mobility clause") of the Staff Handbook which, as the ET found, formed a part of the two contracts of employment.
  91. A prior question which features in a respondent's notice served by the claimants and which it is convenient to dispose of first is whether the second claimant, Ian Laidlaw, was a "mobile" member of staff for the purposes of the mobility clause. This issue arose because, in contrast to the position of the first claimant, Peter Evans, whose conditions of employment contained a specific transfer provision headed "mobility" stating that "as an Immigration Officer you can be required to transfer to anywhere in the United Kingdom or abroad", the only reference in Mr Laidlaw's conditions of employment to any right in the Home Office to transfer him to another posting is the inclusion in the Staff Handbook of the mobility clause. So far as material, the mobility clause provides as follows:
  92. "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 the EO [ie Executive Officer] together with:
    Stores Officer Grade C and D
    Support Managers 1 and 2…
    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. If, however, you are a non-mobile member of staff, you are liable for permanent transfer only to posts within reasonable daily travelling distance of your home, but you can be called upon to serve away from home for periods of detached duty at the Department's discretion."
  93. There are two material findings of fact by the ET material to this issue: the first, in paragraph 6.7 of its decision, is that Immigration Officers are "above EO's in the Respondent's [ie the Home Office's] pay ranges" which, in paragraph 9.1 of the decision, is stated to mean that "Immigration Officers are in a grade which is equivalent to or above Executive Officer"; the second is the finding, recorded in paragraph 9.1 of the decision, that the Staff Handbook (containing the mobility clause) was incorporated into Mr Laidlaw's contract of employment. The ET concluded, at paragraph 9.1, that "the mobility clause set out in chapter 12 of the staff handbook was incorporated in Mr Laidlaw's contract of employment". In paragraph 52 of its judgment, the Employment Appeal Tribunal ("the EAT") agreed, stating that the ET was entitled to find that Mr Laidlaw "was subject to the Mobility Clause …".
  94. In one sense the ET's finding that the mobility clause was incorporated in Mr Laidlaw's contract of employment did not address the question whether, applying the terms of paragraph 12.1, Mr Laidlaw was a "mobile member of staff" since, as is evident from its terms, the mobility clause also dealt with the transfer of non-mobile staff members.
  95. Mr Tayler's argument for submitting that Mr Laidlaw was not a "mobile" staff member was that paragraph 12.1 does not in terms state that all staff who are above or equivalent to executive officer grade are mobile, merely that "broadly" (ie generally speaking) they are.
  96. I consider that this is to read too much into the word "broadly". Given the ET's finding that Immigration Officers are above Executive Officers in the Home Office's pay ranges, coupled with the absence of any finding that Mr Laidlaw's status as an Immigration Officer was in any sense out of the ordinary as regards its terms, it is unreal to suppose that he was nevertheless non-mobile in status. In my view, the word "broadly" serves merely to indicate that there may be "mobile" staff who are not above or equivalent to Executive Officer, in short that the reference to "those above or equivalent to Executive Officer" (together with the other specific staff members referred to in paragraph 12.1) is not intended to be an exclusive definition of mobile status.
  97. That brings me to the interrelationship of the mobility clause (and also, in the case of Mr Evans, the specific transfer provision) with the Redundancy HON. The ET took the view that once a situation arose to which the Redundancy HON applied (so as to require consultation by the Home Office with the relevant trade union representatives, as provided for by paragraph 7, the requirement that the Home Office consider what measures should be taken to avoid compulsory redundancies, as provided for by paragraph 8, and the requirement under paragraph 9 that the Home Office consider whether surplus staff could be deployed elsewhere and the corresponding obligation on staff to accept suitable alternative employment if offered) the Home Office was no longer entitled to invoke the terms of the mobility clause (unfettered by any of the requirements of the Redundancy HON) to transfer any staff thereby affected. The key passage in the ET's reasoning (set out in paragraph 9.3 of its decision) is as follows:
  98. "We therefore concluded that in deciding whether the Redundancy HON applied we would have to decide whether "the event of redundancies, or possible redundancies" (Tribunal emphasis) occurred and, if so, when."

    I pause to note that the emphasised "possible" is taken from paragraph 1 of the Redundancy HON setting out "the principles and procedures which will be applied in the event of redundancies, or possible redundancies, within the Department".

    "We find that some time between 31 March 2004 and 15 April 2004 the Respondent decided that WIT should close, that all employees at WIT would be offered in the Respondent's words "suitable" alternative employment and that those employees who refused offers of alternative employment would be dismissed as redundant.
    We find that this was a situation and an event giving rise to redundancies and/or possible redundancies."
  99. Wrapped up in this conclusion are findings (1) that there existed "a staff surplus at WIT" as a result of the Home Office's decision, made between 31 March and 15 April 2004, to close WIT (see paragraph 9.3.1); (2) that the claimants were employed at WIT (and had been for some years) (see paragraph 9.3.2); and (3) that from the date of its decision in early April 2004 to close WIT until the end of April or early May 2004 the Home Office considered that the Redundancy HON applied and that employees who refused alternative postings "would be made redundant" (see paragraph 9.3.3).
  100. Finding that there existed at WIT what the ET described as "a redundancy situation" and that the Home Office was proposing possible dismissals by reason of redundancy, the ET concluded that, as it put the matter, "the Redundancy HON was engaged" and that, in effect, it was not open to the Home Office thereafter to change tack:
  101. "The employer must decide which attitude to adopt at the time the obligation to consult arises. The Respondent's attitude at the time it decided to close WIT was that it proposed to proceed not by use of the mobility clause but by termination and the offer of suitable alternative employment. That decision was made between 31 March and 15 April … It is that decision which engaged the Redundancy HON and the obligation to consult the relevant unions contained in the Redundancy HON."
  102. The ET found support for this view in the decision of the EAT in Curling v Securicor Ltd [1992] IRLR 549 in which the employer had implemented redundancy procedures (and done so notwithstanding the existence of contractual mobility clauses in the relevant contracts of employment) but then sought at the hearing before the Industrial Tribunal (as it then was) to rely on a mobility clause. In paragraph 14 of its decision in that case, the EAT stated that:
  103. "The employer can invoke the mobility clause in the contract and require the employee to go to a new location or job, if the clause entitles him to do so, whereupon no question of redundancy will arise. Alternatively, the employer can decide not to invoke the mobility clause and rely instead on alternative suitable offers of employment as a defence to claims to a redundancy payment. In the former example, the original employment continues, in the latter it ceases but is replaced in circumstances which, unless the employee unreasonably refuses the offer of suitable alternative employment, provide the employee with continuity of employment but relieve the employer of liability to make a redundancy payment. What the employers cannot do is dodge between the two attitudes and hope to be able to adopt the most profitable at the end of the day."
  104. The EAT in the present case adopted a quite different reason for reaching the same result as the ET that the Home Office was obliged to follow the procedures laid down by the Redundancy HON. Accepting (in paragraph 29) that there was "no principle of law that if an employer is closing down a business it is not entitled to invoke a mobility clause", it found that, as a result of what was said by Home Office representatives at a meeting with union representatives on 3 March 2004, the claimants, through their union, were under the impression that if a decision was taken to close WIT the procedures set out in the Redundancy HON would be followed. The EAT therefore concluded that it was not open to the Home Office, once that decision was taken, to change course. To have sought to do so, in the EAT's view, would have represented "the kind of dodging found to be unacceptable in Curling". Although it did not say so in so many words, I read the EAT's decision to be that, having made that representation, the Home Office was estopped from doing other than following the procedures laid down by the Redundancy HON.
  105. The EAT then went on (in paragraph 33) to uphold the approach to this question adopted by the ET that although the mobility clause might be operated at any time and was of unrestricted width, nevertheless, "when there is a redundancy situation paragraph 9 [of the Redundancy HON] together with paragraph 7, require an attenuation of that approach". This led to the conclusion, set out in paragraph 34, that "the Tribunal was correct to hold that the Mobility Clause must be read in the context of the HON so that where, as the Tribunal put it, the HON is engaged, it is transfers pursuant to paragraph 9 which will be considered". The EAT then added that "the employer has a choice and it chose in this case to tell the union how it was going to handle it under the Redundancy HON and then changed".
  106. In my judgment and for the reasons set out in the judgment of Mummery LJ it was not open to the EAT to find that, by reason of what was said at the meeting on 3 March, the Home Office was in any way precluded from relying on the mobility clause. That merely leaves the ET's grounds for concluding that it was not open to the Home Office to invoke the mobility clause, namely that the Redundancy HON had become "engaged" and that, as a result, transfers of staff could only occur in accordance with the procedures laid down by it.
  107. In my judgment, the ET's view that the Redundancy HON was engaged, and could not be departed from, proceeds upon a false premise. That premise, evident from Mr Tayler's skeleton argument and oral submissions, is that once the Home Office resolved to close immigration controls at WIT, so that the need for Immigration Officers at Waterloo would cease (ie they would be surplus to requirement at their place of employment), the Redundancy HON was engaged with the result that the provisions of the mobility clause were either inapplicable or could only be applied insofar as the terms of the Redundancy HON allowed. But as Mr Goudie and Ms Moore pointed out in their reply skeleton, what triggers application of the Redundancy HON to the claimants is whether the Home Office was dismissing or proposing to dismiss those two persons. As the Tribunal's findings made abundantly clear, however, the Home Office had no such intention. Instead, from the time that it announced to staff on 13 May 2004 that immigration and related controls at Waterloo would close, its wish was to exercise its contractual right under the mobility clause to move them, as Immigration Officers, to postings elsewhere. The fact that, at an earlier date, the Home Office contemplated following the redundancy process laid down in the Redundancy HON is, in my view, of no relevance. It was entitled to change its mind on the matter. Nor can it be said that this alteration of intention, which pre-dated the formal announcement to staff on 13 May of the decision to bring about the closure, amounted to the kind of conduct criticised as "dodging", and therefore as being unavailable to an employer, in the circumstances set out in Curling. In that case, as Mummery LJ has pointed out, the employer had already implemented the redundancy procedure, in which the employees had participated, and had not sought to rely on the contractual mobility obligations until the hearing.
  108. Mr Tayler also submitted that the terms of a letter dated 24 September 2004, written by a Ms Balmforth to each of the claimants in response to letters which the latter had sent seven days earlier explaining why they felt unable to accept a posting to Heathrow, constituted a breach by the Home Office of the implied term of mutual trust and confidence in each of the claimant's conditions of employment and that this breach entitled each to resign, so giving rise to their constructive dismissal. What was relied on in the letter was Ms Balmforth's statement that "a redundancy situation does not arise on the closure of Waterloo" and that "there is no intention to dismiss staff". I am quite unable to accept the submission. In writing her letter of 24 September, Ms Balmforth was merely responding to an ultimatum in each of the claimant's letters seeking an acknowledgement by the Home Office by 24 September (the date of Ms Balmforth's letter) that a redundancy situation existed. Moreover, Ms Balmforth was only repeating the approach that the Home Office had consistently followed since it had announced the closure of static controls at Waterloo over four months earlier.


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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/1089.html