To move or not to move that is the question - is it better to change a location and make a reasonable adjustment than make no change in location at all?

Comment and impact

As a starting point, do not take this case as a blanket authority to move people as part of a scheme of reasonable adjustments. Of it self it is not going to be a defence to a claim to say that the legislation says that you can. It is all part of a wider picture.

The company had the right, given the mobility clause, to do this and had done so in the past. The contractual right, and its use, put it in a strong position to implement the change and the argument about the move itself being a failure to make an adjustment could be seen as Ms Garrett's last ditch attempt to avoid the move.

Do remember though that a mobility clause does not give you carte blanche to compel someone to move. You have to exercise the rights you have in a reasonable way - so discussion, explanation and time for consideration are all necessary. Think through too any unforeseen consequences - indirect discrimination is a common argument where employers look to move staff members with childcare responsibilities. So, take a broad view.

If there had been no mobility clause, or even if there had been one which had not been used, then Lidl would have been in a weaker position. It would not have been impossible to push the transfer but they would not have had the right to do so.

What the Employment Appeal Tribunal (EAT) has done is to take a broad view - and to accept that the ability of the employer to implement the adjustments more easily or with less adverse impact in the new store because of its training function (and without adverse impact on external factors like distance to work etc) - and accept that it is legitimate for an employer to do what can best be achieved rather than saying that it has to be done, even if it can be done, in the original location but not so easily.

There is no doubt that the thoroughness of Lidl's approach at the time it went through the exercise and its careful consideration of the issues affecting Ms Garrett and how they could best be managed gained them considerable sympathy with the ET and the EAT. It had thought through the issues and then made adjustments. Far better for it to defend that position than to have to explain why it had done nothing at all.