LAW REPORTS: Mobility clause must be justified

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The Independent Online
The Court of Appeal (Lord Justice Stuart-Smith dissenting) allowed an appeal by Denise Meade-Hill and the National Union of Civil and Public Servants from the dismissal of their application for a declaration that a mobility clause in the council's contract of employment was unenforceable on the ground of unlawful sexual discrimination.

Mrs Meade-Hill, a married woman, was promoted by the council and required to accept a variation in her terms of service by the incorporation of a mobility clause which required employees of certain grades to serve in such parts of the United Kingdom as required by the council. She would have been unwilling to move if asked, as her husband earned considerably more than she did. The mobility clause was not invoked against her.

Mrs Meade-Hill and the union sought a declaration that the mobility clause constituted indirect sexual discrimination, contrary to the Sex Discrimination Act 1975, and was unenforceable under section 77(2). The judge decided that in the absence of a concrete factual situation in which the council sought to apply the clause, the question of whether it discriminated unfairly was speculative.

Cherie Booth and Helen Mountfield (Robin Thompson & Partners) for Mrs Meade-Hill and the union; David Pannick QC and Gerard Clarke (Treasury Solicitor) for the British Council.

LORD JUSTICE MILLETT said that it was common ground that a higher proportion of women than men were secondary earners and that accordingly a higher proportion of women than men would find it impossible in practice to comply with their employer's direction which involved moving house. That was something of which judicial notice could be taken and did not need to be proved by statistical evidence. Therefore the mobility clause fell within the definition of indirect discrimination in the Act.

The question was whether Mrs Meade-Hill, having entered into a variation of her contract, was entitled at any time thereafter to apply for a declaration that the mobility was unenforceable against her and for an order for its removal or modification or whether she was bound to wait until her employer attempted to invoke it against her. Her complaint was directed against the inclusion of the clause in her contract. Whether she could do so depended on whether its inclusion per se constituted, or was in furtherance of, or provided for, unlawful discrimination against her as a woman.

The requirement of which she complained was the requirement that she must work in whatever location in the UK employers might direct. That was a requirement with which a greater proportion of women than men could not comply. It was also a requirement which the employer must justify and with which Mrs Meade-Hill must be unable to comply.

Mrs Meade-Hill had no difficulty in establishing that the inclusion of the mobility clause, unless justifiable irrespective of her sex, amounted to indirect discrimination against her. As a married woman and a secondary earner, she could not in practice comply with the requirement that she should work wherever the employers might choose to send her.

The submission that a contractual term was not "applied" to a party to the contract until it was invoked was rejected. Its inclusion amounted to an application of a requirement against that party. The requirement must be one with which the employee could not comply; it was not correct to say that she could not sign the contract.

The requirement was not "applied" to her when she was asked to sign the contract.

The inclusion of the mobility clause amounted to unlawful discrimination within section 6. Mrs Meade-Hill established her case that, unless justified, the inclusion of the mobility clause amounted to unlawful discrimination against her as a woman, and was prima facie unenforceable.

The case should be remitted to the county court to consider whether the clause was justifiable irrespective of sex, and if not, whether it should be deleted or modified.

All the employer had to justify was its need to be in a position if circumstances so required at any time in the future to direct an employee to work elsewhere in the UK even if he or she could not in practice comply with such a direction. It could be modified so that compliance could not be required from an employee who was unable to comply with it in practice.

LORD JUSTICE WAITE, agreeing, said that the Discrimination Acts had an educative as well as a legislative purpose. Their objective was not merely to regulate behaviour, but also to influence social attitudes by achieving a greater awareness of the inequalities of opportunity to which discrimination might lead. The interpretation which best accorded with the objectives of the Acts was to regard a contractual condition to be judged at the moment when the contract was entered into.

LORD JUSTICE STUART-SMITH, dissenting, said that it was impossible to say that in all reasonably foreseeable applications, the mobility clause would be discriminatory or detrimental to women. Orders under section 7 should only be made in clear cases.