The operation of a contractual mobility clause: the case of Aziz v The Freemantle Trust [2018] EWCA Civ 2605

In this case, the Court of Appeal concluded that the Employment Tribunal had no need to consider an argument that was not expressly put to it by the Claimant.   It also provided a helpful analysis on the operation of contractual mobility clauses.

The facts in Aziz v The Freemantle Trust

The Claimant was employed by The Freemantle Trust from September 1996 as a care worker.  In 2014, one of her co-workers raised concerns about safeguarding issues regarding the Claimant’s behaviour.  The Claimant was suspended and raised two grievances.  An independent investigator was appointed to look into the issue and the grievances, but the Claimant refused to meet with him.

The investigator rejected the Claimant’s grievances and also observed that the working relationship between her and her colleagues would require some intervention from the Respondent.  During this time, the Claimant brought Employment Tribunal claims for race and religious discrimination, which were rejected by the Tribunal in April 2015 after a hearing.

The Claimant then confirmed that she would be returning to work.  However, as the Respondent was still concerned about the dysfunctional team environment that had not yet been addressed, the Claimant was put on special leave. Further grievances were then lodged by the Claimant, although she refused to participate in any meetings, including those scheduled to discuss how to improve her working relationships.

The Respondent therefore decided to move the Claimant to a different facility and pay travel expenses.  It relied on the following clause in the Claimant’s contract:

“Your base home, office or other such place of work is specified in your letter of appointment. However, it is the essence of Freemantle’s business that work will need to be carried out at other Freemantle premises. It is, therefore, a condition of your employment that should the need of Freemantle’s business require it, you will change your place of work or base office for the performance of your duties.“

The Respondent also relied on its relocation policy.  The Claimant refused to attend the new place of work.  She raised a new complaint to the effect that the relocation was an act of victimisation for having previously brought race discrimination claims. She then failed to attend the disciplinary hearing that was then convened and was summarily dismissed for gross misconduct on 14 June 2015 for failing to attend work or engaging in any process.

Employment Tribunal and Employment Appeal Tribunal

The Claimant’s initial claims to the ET were as follows:

(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 ET conducted a thorough assessment of the Claimant’s victimisation argument and concluded that the reason for the Claimant’s dismissal related directly to her conduct; namely her refusal to attend work or any meetings and her failure to engage with the Respondent on any meaningful level after her stated intention to return after a period of absence. It was not in any way linked to her previous ET claim.

The Claimant appealed to the EAT on the basis that  allegation that the ET had failed 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 (i.e. that the Respondent must exercise a contractual discretion in good faith and not arbitrarily or capriciously). The Claimant’s case was that the Respondent has not sufficiently investigated other options regarding her relocation and that the instruction given to her pursuant to the mobility clause was therefore unlawful. 

The EAT considered this argument and decided that the mobility clause was applicable in cases where the Respondent had a business need to relocate the employee.  This was wider than the relocation policy, which only specified particular types of business needs.  In this case, the Respondent had a dysfunctional team situation which needed resolution and therefore it was the mobility clause that took precedence, not the relocation policy. The Respondent was therefore entitled to rely on the mobility clause to give the relocation instruction to the Claimant. 

Appeal to Court of Appeal

The Claimant appealed further to the Court of Appeal on the Braganza argument.  The Court of Appeal gave this short shrift, concluding that was neither necessary nor appropriate to consider whether the Employment Tribunal had properly considered this argument.  The Court remarked that as the Claimant had not raised a Braganza argument initially with the Employment Tribunal, it was under no obligation to consider it such an argument.

As such, the ET did not commit any errors in law for failing to consider a Braganza argument, simply because this argument was not raised before it.

Commentary

This case is a helpful reminder that Claimants need to be proactive when drafting their claims, ensuring that they are comprehensive and that all potential arguments are included. It also offers guidance to both employers and employees as to how courts will analyse the operation of mobility clauses and to consider the principles of contract law in addition to those of employment law.