A new recruit is refusing to fly to Chicago for a business trip because he has an intense flying phobia. Can we force him to go? He took the position knowing there would be overseas business travel, mostly in Europe. He has since told us he can cope with short-haul but not long-haul flights. He is a senior employee and no-one else can take his place. What are our rights?
Does his contract require him to undertake foreign travel? This is a key factor in whether you are able to force him to travel long haul. During the interview process, you must check that candidates are capable of extensive long-haul travel do not suffer from agoraphobia or claustrophobia and have a passport and are eligible for visas.
The employment contract must state any travel requirements, including details of geographical coverage, frequency of travel and approximate amount of travelling time.
If the employment contract has such a travel clause in place, employees must obey all lawful and reasonable instructions from their employer. Where an individual contravenes a contractual term, this gives grounds for dismissal.
If the employee doesn’t sign the contract, implied terms of the contract requiring long-haul travel would need to be established. In this case, the employee appeared to be under the impression that most of the travel would be in Europe.
It may be possible to imply that foreign travel is the norm for a senior person in the industry or that long-haul travel was obvious, although not stated in the contract. However, any attempt to force the individual may result in him resigning and claiming constructive dismissal.
If the employee has less than 12 months’ service, you can terminate his employment on the grounds that long-haul travel is a pre-requisite for the position. Otherwise you may have to consider on what grounds you can legally terminate employment. You would also need to show that a detailed process of employee consultation has taken place.
Finally, is your employee’s ‘intense flying phobia’ relevant to the Disability Discrimination Act 1995? This would involve discussions with the individual and possibly obtaining a medical report.
By Russell Brown, employment lawyer and partner, Glaisyers Solicitors
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