Relocation or dislocation? A guide to navigating ACE’s transfer programme

There is little doubt that those working in the creative industries have historically been drawn to London, where the arts have flourished. Whether this is due to the concentration of creatives or the scale, variety and wealth of the potential audience – or indeed if it is to the detriment of other regions – is best left to other commentators. 

But, in the short term, the push to break up London’s perceived monopoly of the arts will lead to medium-term disruption for people at the forefront of delivery and those being asked to relocate. 

The most widely publicised shift has been imposed on the English National Opera (ENO), with the proposal (threat) that, if it does not broadly relocate outside London, it will no longer receive ACE funding (having already had its award reduced by half for coming year). 

The ENO may not be the only arts organisation forced into reconsidering where it is based or where it operates from. The exodus from London during the Covid pandemic, the expansion of remote working and a sometimes reluctant and reduced audience appetite may also lead some operators to think about moving, downsizing or changing to a remote working model. 

Check your contract

If there is a risk that relocation may be on the cards, employees (and contractors) should first check the terms of their contract. Does it include a mobility clause which might compel an employee to move location if the company does? 

Such clauses will usually have limits on the distance anticipated and will be enforceable unless they are completely unreasonable. For example, relocation within a city or a 20-mile radius may be deemed reasonable but moving 200 miles would not. 

Only if there is a reasonable mobility clause in the contract can someone be compelled to change location. A refusal to move in such circumstances will be tantamount to a resignation. 

Relocation or redundancy?

Where a whole business, or part of a business, plans to relocate by more than a short distance, there is a risk that employees may not follow. Many people will not want to move their homes and lives, even if their job is moving. 

If that’s the case, some or all employees may be at risk of redundancy. When a redundancy situation arises, employees must be consulted about the proposals. Where there are 20 or more employees at risk of redundancy, the consultation period must last at least 30 days (and where there are more than 100, this increases to 45 days). 

Consultation allows an opportunity for employees to raise their concerns and questions with their employer and to offer alternative solutions and proposals which might avoid the need for redundancies. Although consultations must be genuine and meaningful, there is no obligation on an employer to amend their proposals unless they agree there is a good reason to do so. 

If an employee is consulted about a potential move and/or redundancy, they may think about alternative suggestions such as remote working or other flexible working arrangements. If a move is being contemplated, asking for a contribution to relocation costs should be considered if it is not already offered. 

For the company, there may not be any alternative but to relocate, either due to unmanageable costs of staying or a material risk to funding streams by not.  

Redundancy payments

If an employee is unable or unwilling to relocate and they cannot be compelled to do so under their contract, redundancy may be the only option. Only employees who have over two years’ continuous employment are entitled to statutory redundancy pay. 

This is a tax-free payment in addition to contractual notice. Statutory redundancy pay is calculated with reference to an employee’s gross weekly pay (capped at £571 per week), age and length of service. 

Broadly, an employee will receive a week’s pay for each full year of employment, up to a maximum of 20 years. If an employee is aged over 41, the weekly pay is multiplied by an additional 50% for each year of employment over 41. 

Only employees are entitled to redundancy pay. Freelance workers and contractors should refer to the terms of their contract, which will likely deal with notice provisions and pay only. 

What next?

If an employee does change their place of work, or moves to a remote working arrangement, the change is likely to be permanent unless stated otherwise. If this is of concern, it might be possible to factor in a trial period, but take care to factor in redundancy payments if it doesn’t work out. 

For any employee contemplating a move out of London, there may be other considerations, such as the cost of accommodation and travel and the availability of other work opportunities.

If there are any concerns or queries about what is being proposed or offered, employees should discuss it with their employer. If matters cannot be resolved informally, speaking with a trade union official, where available, or raising a formal grievance can be considered. 

Formal advice from solicitors can be costly, but that is always an option, though some will be happy to give you initial advice without charge (but always check first). 

Kevin Poulter is an employment lawyer and Partner at Freeths. 
www.freeths.co.uk/
@kevinpoulter | @freeths