From time to time, an employer may decide to move premises or relocate due to economic or business needs.
But when is a relocation 'redundancy' and when is it simply 'moving premises'? When can an employer argue that the relocation is reasonable and when can an employee argue that it would amount to a redundancy scenario should they decline to move.
Case in focus
This was the question posed in the case of Employer -v- Employee UD1968/2011 when a food group moved its warehousing and distribution operations. The employees transferred to the new specialist distribution company under the Protection of Employees on Transfer of Undertaking (TUPE).
Some employees expressed dissatisfaction with the move and extra distance they would have to travel. The employees would have had to move an additional five miles down the N7. The Tribunal held in this case that the change in location did not amount to a fundamental change. Thus, their refusal to move was wholly unreasonable.
The Tribunal went on to say, "it is a well-established legal and factual principle that from time to time employees might be expected to change workplace location during the course of employment and that this fact cannot and does not give rise to redundancy where employees can reasonably be expected to get to their new destination."
Alternatives to redundancy
The matter stems around whether there are alternatives to redundancy. In the above case, it would be the moving of the premises a reasonable distance down the N7.
The issue of reasonableness is also very important as shown in the case of Bass Leisure Ltd. -v- Thomas [1994] IRLR 104. The business looked to move the premises 20 miles away and the EAT argued that the employee was entitled to claim redundancy. They found in favour of the employee in this case as the business didn’t take account of the employee’s domestic circumstances.
A similar case is McMahon -v- Clare Civil Engineering Ltd. (RP387/2003). Here, a business operating in the Limerick/Clare region closed. They offered their employees alternative employment in Skibbereen and/or Dublin, which would have involved a three-hour commute. The EAT held it was reasonable for the employees to refuse this employment and to consider themselves redundant.
A final case to consider is McEntee -v- Setanta Security Ltd. (RP60/2005). The employee in question was a security guard at a site for 26 years. He had worked both day and night shifts, but only nights in his final two years.
The business installed CCTV cameras which made his position redundant and offered four options to the employee as an alternative:
- 49-hour working average over two weeks, at a site eight miles from the current location.
- 42-hour working average in the same location.
- 36-hour working average over two locations, which were eight miles apart, alternating between day and night shifts.
- 42.25-hour average over two weeks with conditions similar to option three.
The Tribunal found in favour of the employer in this case and held that option 1 was a suitable alternative and a reasonable offer of employment.
Considerations for employers
Employers should consider what would be a reasonable offer from the point of view of the employee. Their domestic circumstances would be considered and whether the employee has a justifiable reason for rejecting the offer.
The question is not whether a ‘reasonable’ employee would have accepted the employer’s offer. The question is whether the employee, considering their personal circumstances, was being reasonable in refusing the offer?
The question whether the employee had sound and justifiable reasons for refusing the offer has to be judged:
- from the employee’s point of view,
- on the basis of the facts as they appeared, or ought to have appeared, and
- to the employee when they refused the offer.
It comes down to asking whether the job matches the person: does it suit their skills, aptitudes, and experience? Consider the whole of the job, not only the tasks, but the terms of employment, especially wages and hours, and the responsibility and status involved.
The location may also be relevant, because ‘commuting is not generally regarded as a joy’ (Laing v Thistle Hotels Plc [2003] SLT 37, Ct of Sess, per Lord Ordinary Eassie). No single factor is decisive; consider all as a package.
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