Unfair transfer

[DanixR]

hi there, I've searched the net high and wide but can't find an answer to my question, so any advice would be great.

 

I work for a company who clearly state in their contract that we can be moved within reasonable distance to cover a business need. However another member of staff in my branch has recently been demoted and has said she's asked for her old job back (which I now do) instead of the one she's been demoted too. As my role requires 2 people and is currently being filled by myself and another colleague I feel that if anyone should be transferred to another branch, it should be the person who has been demoted. I would have a new commute of 75 miles a day and I would be unable to get childcare to cover the new hours it would be required if they do transfer me and therefore I would have no choice but to resign from my position. My question is, legally can my company move me to make a position available for someone else and would the fact I'd be unable to accept the transfer and therefore be forced to resign be classed as unfair constructive dismissal?

 

I am being called to a meeting tomorrow and I'm pretty certain that the conversation is going to go this way, so just want to know what I can do, instead of being backed into a corner.

 

Thanks

[Sidewinder]

Although it is clear that you do have a mobility clause in your contract, the key word here is 'reasonable' - ie you can be moved around within a 'reasonable' distance. There is no set definition of what may be deemed 'reasonable' as this will depend on individual circumstances and the role that you perform. It may be reasonable for a highly paid branch manager to be able to travel further than somebody on minimum wage, without a car and with only limited public transport options for example.

 

Ultimately what is reasonable can only be determined by an Employment Tribunal - for example were you to be dismissed for refusing to move, or (as you allude to were there to be a case for constructive dismissal) and the matter was put before a Judge to make a ruling. In your case, clearly a 75 mile round trip may well impact negatively on your childcare responsibilities (it may also present an unbearable financial burden or any one of a number of other reasons, however the childcare element is the most important one to lead with here).

 

So, although the meeting tomorrow may well be to discuss the possibility of you accepting a request to transfer location, the employer may well find it very difficult to force you to accept. If this is the suggestion, then the fairness or otherwise of allowing the demoted employee to work at her old branch is irrelevant - that is the employer's business, however the fact that you may be asked to move to a location which is 'unreasonable' in your particular circumstances is the matter which the employer will have to overcome. Stress that such a move would be impossible due to it being impossible to arrange additional childcare then add any other factors which are pertinent.

 

Should the employer be pushing the fact that you have a mobility clause, then point out the fact that it contains the word 'reasonable' and that there is no qualification to this statement in your contract. Where for example does it say that the employer will consider 'reasonable' to mean anywhere within 'X' miles or that family circumstances are irrelevant in determining what is 'reasonable'

 

Should they force the issue and threaten consequences, then (although you should always seek professional advice first) you may well have grounds to look at unfair constructive dismissal.

 

Make sure that you write copious notes - or have a notetaker do it - at any such meeting

 

Please let us know how you get on - and Good Luck!

[SabreSheep]

Also how long have you worked for the company?

 

As above, make sure any notes taken capture the main points. READ THEM at the end and make sure any corrections are added and counter signed. Also request in the meeting that you would like a copy of the notes and agree how this is going to happen.

 

Moving forward, I would recommend joining a union to help you in times like these. Especially now as tribunals require deposits which a union May pay for you.

[IdaInFife]

DanixR how did it go?