Mobility

Case ref: 10.4 / Oct '05

Summary of Case

Our member was a typist in the civil Service for nearly 20 years.

She was informed that her employer wished to consider closing the office she worked in and relocate her. The member appealed against this.

With her appeal she enclosed journey times from the office she was currently employed to the one which the employer was seeking to transfer her. At an appeal hearing the member stated that the journey time between the two offices was more than an hour door to door.

She was informed that if she chose to travel by car then she would be compensated 12p per mile. Her view was that this amount was not sufficient to cover the wear and tear on her car as a consequence of using her car for work.

Furthermore the car allowance was only fixed for 3 years. The member was also told that redeployment was not an option due to the fact that her role involved 90% typing. At this meeting her employer accepted that the journey time would be very close to an hour.

The member's existing journey time was 15 minutes per single journey.

She was classed as a non-mobile grade. Her employer issued a document to employees which stated "because you are regarded as of limited mobility status you will not be expected to transfer to a post beyond reasonable travelling distance of your home. Reasonable travelling time is defined as being one hour's travelling time, based on using public transport from home to office for each single journey".

There were no personal circumstances which prevented the member from travelling to work to the new office or any other outside the area.

Advice requested

The solicitor was asked to advise on the merits of the case and its prospects of success at an ET.

Key advice provided by Thompsons

In this case the solicitor provided the following advice: 

"As a result of the proposed closure of the office your member has been offered what her employer believes to be suitable alternative employment. 

"An employee who is dismissed by reason of redundancy loses their right to a redundancy payment if an offer of suitable alternative employment is refused by them. 

"An offer of suitable employment must be either:

  1. on the same terms and conditions as the previous contract, or
  2. suitable employment in relation to the employee

The question of the suitability of an offer of alternative employment is an objective matter.

The Tribunal will consider whether the employment offered by an employer is suitable taking into account whether the new role offered is similar to the previous post held.

In this case your member is expected to provide the same typing service as previously offered, there is no anticipated loss of status or salary. In this case the only difference to your member's employment conditions is an increase in her journey time. 

"The question of whether an employee reasonably refuses an offer of suitable employment is subjective and depends on factors personal to the employee to be considered from the employee's point of view. In this case your member's journey time has increased from 30 minutes to approximately one hour and seven minutes.

"I am aware that your member's employer has determined that a reasonable journey time constitutes one hour. It is my view that there is a real risk that the Employment Tribunal may decide that your member has refused an offer of suitable alternative employment.

"This is because the journey time is not greatly in excess of an hour. By law an employee has four weeks in which to decide whether the alternative employment is suitable. It is my view that your member should accept the new position on a trial period in order to ascertain whether the journey time is unreasonable and in excess of an hour. 

"With regards to whether your member is obliged to complete the whole four weeks at the new location; it is my view that your member should make every effort to attend the new site for the while trial period. If, having undertaken the journey for the whole period, your member will be in a better position to argue that the duration of the journey, is such that is makes the alternative post unsuitable."

Legal department comment

The advice provides some guidance on the test which the ET will apply when considering arguments and the issue of reasonable travelling distance.

The distinction which the solicitor makes about the suitability of any job offer and refusal of an offer of suitable employment, i.e. subjective v objective is worth noting.

Also, the advice in these circumstances about accepting a trial period of 4 weeks deployment to the new office is useful. A further review of the position can be undertaken and arguments deployed if the employer insists on pressing ahead with any transfer.

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