Aziz v The Fremantle Trust, Court of Appeal - Civil Division, November 28, 2018, [2018] EWCA Civ 2605

Resolution Date:November 28, 2018
Issuing Organization:Civil Division
Actores:Aziz v The Fremantle Trust
 
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Case No: A2/2017/2241

Neutral Citation Number: [2018] EWCA Civ 2605

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

UKEAT/0027/17/LA

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28/11/2018

Before:

LORD JUSTICE UNDERHILL

(Vice President of the Court of Appeal (Civil Division))

and

LORD JUSTICE SALES

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Between:

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Jack Feeny (instructed by Rich & Carr Solicitors) for the Appellant

Kevin McNerney (instructed by Rradar Solicitors) for the Respondent

Hearing date: 8 November 2018

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JudgmentLord Justice Sales:

  1. In this judgment I will refer to the appellant as the Claimant, as in the decisions below. This is an appeal from the Employment Appeal Tribunal (HHJ Eady QC - ``the EAT''), which dismissed an appeal from the Employment Tribunal (``the ET'') which had in turn dismissed the claims brought by the Claimant against her employer (the Respondent) of unfair dismissal, victimisation, wrongful dismissal and wrongful deduction of wages.

  2. Mr Feeny, who appeared for the Claimant in the EAT and on the appeal to this court, did not appear for her in the ET. In the ET the Claimant was represented by her then solicitor.

  3. At the heart of the present appeal is the operation of a mobility clause contained in the Claimant's contract of employment. In reliance on that clause, the Respondent instructed her to change her place of work. The Claimant refused to comply with that instruction. She was then dismissed for gross misconduct. The ET held that the instruction had been lawfully given.

  4. The grounds of appeal to this court, reflecting the way the Claimant's case was presented in the EAT, are principally concerned with an allegation that the ET erred in law by failing to consider and apply the guidance given by the Supreme Court in Braganza v BP Shipping Ltd [2015] UKSC 17; [2015] 1 WLR 1661 regarding the operation of a contractual discretion under a contract of employment. It is said that the Respondent failed sufficiently to investigate other options regarding the relocation of the Claimant, with the result that the instruction given to her pursuant to the mobility clause was unlawful. The grounds of appeal also complain that the ET failed to give sufficient reasons for its conclusion that the instruction given to the Claimant pursuant to the mobility clause was a lawful instruction.

  5. As has emerged on the appeal, however, these grounds of appeal do not reflect the way in which the Claimant's case was presented to the ET at first instance. This gives rise to an insuperable difficulty for the Claimant on this appeal. She cannot show that the ET committed any material error of law in relation to her case as it was presented to them.

  6. In the ET the Claimant did not rely on the Braganza case, or the principles of law which it sets out, as the foundation for her contention that the instruction to change her place of work was unlawful. Instead, she made two very different submissions: (a) the true reason she was instructed to change her place of work was that this was an unlawful act of victimisation by the Respondent taken against her because she had previously brought another claim against it in the ET in relation to alleged race discrimination (this was the Claimant's primary case in the ET in relation to the alleged unlawfulness of the instruction given to her pursuant to the mobility clause); and/or (b) the scope of the Respondent's right to re-deploy her pursuant to the mobility clause was defined by a relocation policy adopted by the Respondent, and the instruction to her was not in conformity with that policy. The first of these submissions was closely bound up with the free-standing victimisation claim which the Claimant had brought.

  7. The ET dismissed the Claimant's victimisation claim after a detailed examination of the evidence and for proper reasons which cannot be and were not challenged on appeal. For the same reasons, the ET dismissed the Claimant's submission (a) regarding the lawfulness of the relocation instruction (see in particular paras. [72.7]-[72.8] of the ET's decision). There is no appeal in respect of the substance of the ET's decision or its reasons in relation to that aspect of the Claimant's claim.

  8. It is, I think, a possible point of criticism of the ET's reasons that it did not distinctly explain why it rejected the Claimant's submission (b) regarding the lawfulness of the relocation instruction. The point had been raised in the Claimant's pleaded Details of Claim in the ET and Mr McNerney (who appeared for the Respondent in the ET and before us), doing the best he could to recall what had happened in the ET, said that even though the primary submission for the Claimant had been submission (a) he thought that the Claimant's representative had also made submission (b) in closing. But the Claimant's Details of Claim were lengthy and diffuse; we were not shown the closing written...

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