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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Is this legal - a recent internal letter from XFIRM. i.e.can

Resolved Question:

Is this legal - a recent internal letter from XFIRM. i.e.can an employee be effectively sacked for refusing to go overseas even if it is a 'suitable' ( no consultations note) role.

12. If you are offered what XFIRM considers is a suitable role, whether on an assignment basis or within your home country, and you decline such an offer, then you may be exited from XFIRM on the basis you have turned down suitable role. You will not be eligible for any payments on the termination of your employment, including for the avoidance of doubt any redundancy payment should you be in a redundancy situation. The suitability of a role will be considered by level and skillset.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there for?

Customer:

23 years

Ben Jones :

and what has happened now - are you facing redundancy and they have made you an offer they believe is suitable?

Customer:

coming to end of overseas contract - next step is to find job in organisation. However this HR letter has now added the 'world assignment' to the contract terms which previously stated that overseas assignments may be refused, but suitable UK roles may not. Now it appears, there are more opportunities for employees to be 'exited' if they refuse an overseas assigment for any reason. Employees seem to have no right of refusal on any grounds if the company considers the role offered as suitable and can be fired.

Ben Jones :

This is basically a mobility clause that could allow the employer to ask you to move to any designated location as per the terms of that clause. However, it is not as simple as drafting a clause as they wish and then stating it is written down so it will apply regardless of the circumstances – the law still expects the employer to act fairly and in an even handed manner in these situations.


 


The law has developed so as to restrict employers unilaterally making changes to the relationship in reliance on such clauses by interpreting them restrictively and using implied contractual terms that would limit their use.


 


The leading case on this issue is United Bank v Akhtar, where in reliance of a specific mobility clause the employee was asked to move from one city to another. However, he received little notice of the move and his employer also refused to exercise its express contractual discretion to meet his relocation expenses.


 


The tribunal decided that the employer's actions amounted to a breach of three terms which were implied into the contract in question. These were:



  • The employer should give reasonable notice of any move

  • The employer would not exercise its discretion to provide relocation expenses in a way which made the employee's performance of his obligations under the employment contract impossible.

  • The employer would not act in such a way so as to damage the relationship of trust and confidence which exists between employer and employee.


 


Each situation will depend on its individual circumstances, that is certain, so it would never be possible to state with 100% certainty that what they are doing is legal or not and only a court can decide that but you certainly have something you can raise with the employer to challenge this at this stage.

Customer:

For clarification, (1) it is OK for an employer to solely decide what is 'suitable' without recourse to the employees stated and recorded career plan

Customer:

For clarification : 1. it is ok for an employer to deem what is a 'suitable role' without recourse to the employees wishes or to the recorded career plan of the employee. If this contradicts a company Code of Conduct, how would this affect the matter.

Customer:

Resend; For clarification: 1. it is ok therefore for XFIRM to deem what is a 'suitable role' without recourse to the employees wishes where the objection may be on the grounds of unsuitability etc. Could an employee for instance be 'found a role' in Iraq which is clearly re-fusable? 2. If an employee has previously refused a role in order to apply to another position which was ultimately unsuccessful, can a re- request by the company to go to the same position, knowing that the answer will be 'no', be considered constructive dismissal?. If this is getting too deep let me know.

Ben Jones :

no, the employer will not retain fill authority to decide the suitability of a post, this is something that ill actually rest more with the employee as they are the one doing the job and it is their personal circumstances that would determine the suitability of job

Customer:

so, last question if an employee turns down a job as unsuitable, and the company views this as 'gaining baggage' for future applications, are we are getting into the realm of victimisation etc

Ben Jones :

it is not victimisation as that only relates to discrimination, which has not occurred here. When you say other applications, what re you refer rig to exactly please?

Customer:

whether this applies to future job applications in that 'having baggage' implies that your chances of getting any future position in the organisation will be diminished if a role is turned down and that the company's meritocratic hiring process would in effect be by passed. It happens all the time in employment of course , but the company code of conduct says that it should not occur

Ben Jones :

in terms of future opportunities, if the employer takes this into account when deciding on whether to offer certain positions, it is unfortunately not something that can be challenged because they have the right to take whatever factors they want into account, as long as they are not discriminatory. This has nothing to do with discrimination though so it would not be unlawful to use it as a reason to determine a person's suitability for a job in the future and it would not be vicimisation as that only occurs if there is a discriminatory reason

Customer:

ok thanks for your help. now signing off

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45315
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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