A right to redeploy?
August 2007
In this article...
Katy Horner looks at a recent Court of Appeal decision in which the question was whether an employer was entitled to withhold the wages of a teacher who refused redeployment to a workplace other than the one specified in her employment contract.
The facts
In
Luke v Stoke-on-Trent City Council the claimant was employed as a special needs teacher at the Council’s Assessing Continuing Education (ACE) centre. She complained that she had been bullied and harassed by her head teacher.
The Council appointed an independent investigator to conduct an enquiry into Mrs Luke’s complaints. Mrs Luke went off sick with stress and it was agreed that she would not return to work until the investigation had been completed.
The investigator produced a report upholding only one of Mrs Luke’s 33 complaints. The investigator devised an action plan which (if it had ever been implemented) would have involved mediation to secure a successful return to work for Mrs Luke.
Mrs Luke was keen to return to work at the ACE centre and was willing to adhere to the action plan to achieve this. However, she did not accept the findings of the investigation report. To allow a return in these circumstances was, in the Council’s view, likely to jeopardise the success of the action plan because at any time the grievances could have been resurrected.
The Council battled over ten months (during which time Mrs Luke remained on full pay) to resolve the situation and suggested redeploying her to other work away from the ACE centre while a long-term solution was identified. Mrs Luke rejected these redeployment proposals out of hand and insisted that she should return to the ACE centre.
When the parties failed to reach agreement as to the way forward, the Council stopped paying Mrs Luke’s salary. Mrs Luke lodged an employment tribunal claim, alleging that the Council’s actions constituted a series of unlawful deductions from her wages contrary to section 13 of the Employment Rights Act 1996.
Mrs Luke argued that she was ready, willing and able to work; that she was being prevented from doing so by the Council; and that she was therefore still entitled to receive her salary, particularly because the Council had no contractual right to require her to work anywhere other than the ACE centre (there was no mobility clause in her contract).
The Council, on the other hand, argued that it could not go on paying Mrs Luke when she was not actually undertaking any work. In refusing to accept the findings of the investigation report, Mrs Luke was preventing the Council from implementing the action plan which was the only basis upon which the Council believed that she could successfully return to the ACE centre. Furthermore, she was refusing to contemplate work elsewhere.
The decision
The Court of Appeal decided that the Council was justified in withholding Mrs Luke’s salary and that this did not constitute an unlawful deduction from her wages. The Court focused on the employment relationship between the Council and Mrs Luke, which was governed by the express terms of the employment contract. Its rationale was as follows:
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Mrs Luke was an employee of the Council, which meant that she had a duty to comply with the Council’s reasonable requirements. These reasonable requirements could be instructions or management decisions, as long as they fell within the scope of the employment contract. | |
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After hearing extensive evidence, the employment tribunal had found that the Council’s stance of insisting that there was no point in Mrs Luke returning to work at the ACE centre if she refused to accept the investigation report was reasonable. | |
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Mrs Luke chose not to accept the report, which prevented her from returning to the ACE centre, and she refused to consider any alternative employment. She had no contractual right to specify the terms upon which she would return to teach at the ACE centre. | |
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There was work to be done at the ACE centre and Mrs Luke was contracted to do it. If she had complied with the Council’s reasonable requirement that she accept the report then she could have returned to work and would have been paid. Ultimately, she was not ready and willing to work as her employer required, was in breach of her contract and was not therefore entitled to payment. |
What does it mean for me?
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Ensure that your contracts of employment contain sufficient detail outlining your employees’ place of work and duties as well as any appropriate mobility clauses. | |
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When invoking mobility clauses, ensure that you do so reasonably, in consultation with the employee, with sufficient notice and taking into account personal circumstances. | |
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If an employee has raised a grievance and has been absent for the duration of the investigation, consider putting together a robust return-to-work “action plan” based on the findings of the investigation report. | |
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When endeavouring to secure a successful return to work, be very clear as to your requirements and communicate these to the employee. Provided your requirements are reasonable, an aggrieved employee may not dictate the terms of his or her return. | |
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