England and Wales Court of Appeal (Civil Division) Decisions

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
		28/11/2018

Lord 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 submissions which the parties presented to the ET; and it may be that the focus on the Claimant's primary submission (a) before the ET was so great that in practice it was sufficient for the ET to focus so strongly on that submission. Accordingly, on the materials available to us, I would be loath to criticise the ET for this. The important point, however, is that it does not matter for present purposes. Even if the criticism could be made, the EAT has explained clearly why it would not amount to a material error of law. That is because on its true interpretation the mobility clause had a wider effect than the relocation policy: the mobility clause did cover the circumstances of the Claimant's case, while the relocation policy had no bearing upon it. The EAT is plainly correct about that and no appeal has been brought in relation to that aspect of its decision.
9. As regards the complaints about the ET's decision which are sought to be made on behalf of the Claimant on this appeal by reference to the Braganza case, there is no merit in them. It was incumbent on the Claimant to set out her case why she maintained that the relocation instruction given to her was unlawful. She did so by making submissions (a) and (b) above, but not by any complaint based upon the Braganza case or principles. There was no duty on the ET to consider arguments founded on Braganza of its own motion, where they had not been raised by the Claimant. Accordingly, there was no error of law by the ET in omitting to do so.

Factual background

10. For present purposes, a helpful summary of the factual background was given by the EAT, which I gratefully incorporate into the following account.
11. The Respondent is a charity which provides care and support for older people and adults with learning disabilities. It operates in the South East of England and employs around 2,000 people, with a fairly small senior management and HR team.
12. The Claimant's employment went back to September 1996, when she had started working as a care worker at premises known as Beech Lodge, then employed by the London Borough of Barnet. In 2001, her employment had transferred to the Respondent. In 2003, she agreed to relocate to a different site, Dell Field Court; it was there that issues began to arise between the Claimant and two other workers.
13. In mid-2014, one of those workers made complaints about the Claimant raising safeguarding issues concerning her behaviour towards one of the residents. The Claimant was suspended on 4 August 2014 and the commissioning authority, the London Borough of Barnet, began to investigate but, by 14 August, had concluded there was insufficient evidence to take things further at that stage. The Claimant's suspension was duly lifted but she was then away from work due to stress.
14. There was then a further period of suspension due to another issue and the Respondent took the view that an independent investigator should be appointed to look into that matter as well as to investigate two grievances that the Claimant by then had lodged. As the Respondent was paying the fees of the investigator, however, the Claimant considered he would be biased and declined to meet with him.
15. The investigator's report recommended that the Claimant's conduct in respect of her behaviour towards a resident might appropriately be addressed as a training issue. It further commented, however, upon the dysfunctional team working at Dell Field Court and observed that the Respondent would need to consider whether the Claimant and the other two employees could continue to work together without some kind of intervention. By a further report, the investigator went on to reject the Claimant's grievances.
16. For her part, having seen the full report, by letter of 14 January 2015, the Claimant made plain she did not accept its conclusions.
17. Meanwhile, the Claimant had presented a claim to the ET complaining of race and religious discrimination. That was rejected after a Full Merits Hearing in April 2015. During the course of that hearing, the Claimant intimated she would be returning to work in due course.
18. The Respondent's HR manager, Ms Toye, was concerned about the Claimant's return to work: by that stage, it was eight months since she had worked at Dell Field Court and the independent investigator had raised issues about the dysfunctional working of the team which still needed to be addressed. It was in that context that it was determined that the Claimant should be put on special leave, a decision communicated to her on 13 April.
19. On 20 April 2015, the Respondent wrote to the Claimant referring to the unresolved issues identified by the investigator and proposing a meeting to discuss how best to resolve them. The Claimant responded on 21 April, the day before the intended meeting, making clear she continued to reject the findings of the investigator and objecting to the failure to give reasonable notice of the proposed hearing, identifying that as a possible act of "further victimisation and harassment". She asked that her letter be treated as a grievance.
20. A follow-up letter of 28 April was sent to the Claimant, again seeking to meet to determine the best way forward given the issues identified in the investigator's report. The letter proposed meeting on 5 May. The Claimant faxed a reply on 4 May saying she would not be attending the meeting and that she considered the Respondent's letter to be "further harassment and victimisation because I took my case to the Employment Tribunal". There was a further attempt by the Respondent to arrange a meeting with the Claimant but that was met with a similar response.
21. Ms Toye then considered the position and determined that the Claimant should be moved to work at the nearest facility to Dell Field Court, at the Meadowside Day Care Centre - a decision communicated to the Claimant by letter of 21 May, giving her three weeks' notice of the move and confirming that additional travel expenses would be met in accordance with the Respondent's relocation policy. It was also observed that the Asian Service, in which the Claimant worked, would be moving to Meadowside.
22. The Claimant's contract of employment with the Respondent included the mobility clause, which was in the following terms:

"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."

23. The Claimant responded on 6 June saying she did not accept, as she put it, the "offer to move to a different location". She considered it was an abuse of the relocation policy and an act of victimisation.
24. The relocation policy thus referenced by the Claimant provides as follows:

"Statement of Policy

Fremantle will ensure that, in connection with: the closure of an establishment; a rebuilding operation; a relocation of services or a new service development, the relocation and redeployment of staff is as smooth and effective as possible.

Scope

Each Fremantle employee has a condition in their contract of employment, which means that they can be required to work in any of Fremantle's establishments should the need arise. This policy is to be applied in implementing that condition in connection with: the closure of an establishment; a rebuilding operation; a relocation of services or a new service development.

Principles

As a general principle, the best interests of service users will take precedence in determining final relocation arrangements, which will ensure that services and service development are provided effectively. Staff will be fully informed and consulted about planned or unplanned changes to their place of work and inconvenienced as little as possible.

Staff will not be 'out-of-pocket', subject to the limits in the expenses section of this policy, as a result of temporary or permanent relocation under this policy.

Based on our current understanding of Inland Revenue rules, travel expenses paid under this policy are not liable for Income Tax or National Insurance Contributions."

25. The Respondent sought to explain its reasons and reaffirmed its instruction in a further letter to the Claimant on 9 June, stating that if she failed to attend her shift at Meadowside on 11 June 2015, that would be treated as unauthorised absence and further action might then be taken. The Respondent had considered relocating the two workers with whom the Claimant was at loggerheads, but had decided against this because it would involve redeployment of two people rather than one and because the Claimant had refused to come in to discuss options. Ms Toye had made inquiries of the manager of Dell Field Court and had been told that the team there had been functioning well since the Claimant had been away from work. As, however, the Claimant had made reference to her redeployment being a grievance, she was also invited to attend a grievance meeting. She did not do so.
26. The Claimant did not attend Meadowside on 11 June and that was when she stopped being paid by the Respondent. By letter of 16 June, the Claimant was invited to a disciplinary hearing on 24 June; the disciplinary charges raised being (1) unauthorised absence and (2) failure to engage with the Trust.
27. The Claimant then presented a new grievance, in part raising the same issues as before. The Respondent duly postponed the disciplinary hearing but the Claimant still failed to attend any grievance hearings and, by letter of 25 June, her grievances were dismissed.
28. The rescheduled disciplinary hearing was then arranged for 30 June but the Claimant did not attend. The disciplinary panel took the view that the charges were made out, the first amounting to gross misconduct. Moreover, it considered there was a fundamental breakdown in trust and confidence and determined that the Claimant should be dismissed, a decision communicated to her by letter dated 13 June, received by her on 14 June, that then being the date of her dismissal. The Claimant exercised her right of appeal but was unsuccessful.

The decision of the ET

29. The ET was satisfied 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 (see para. [72.2]). More particularly, the previous ET claim - albeit raising some similar issues to those relating to the difficulties between the Claimant and her colleagues - was not the reason for her dismissal. That essentially answered the claim of victimisation; the fact that the Claimant had previously brought an ET claim was not an effective cause of the treatment of which she was complaining. Specifically:

"72.3. … We are more than satisfied that the respondent has demonstrated clear business reasons including impact on the service users and concerns expressed by the commissioning authority [the] London Borough of Barnet which meant that the respondent had to think carefully about how to address the problems identified. That was the reason for the treatment of the claimant."

30. The ET was further satisfied there were reasonable grounds for the Respondent's belief in the Claimant's misconduct: she did not attend Meadowside notwithstanding there was a clear contractual term requiring her to do so, which covered the circumstances of this case, and she had been warned of the consequences if she did not (see para. [72.4]).
31. As for the investigation, the ET was again satisfied that this fell within the range of reasonable responses. Although it had some concern that Ms Toye had not discussed the situation with the other two members of staff who formed part of the dysfunctional team at Dell Field Court, it accepted that she had reasonably concluded she had sufficient information to proceed in the way she did, given that the Claimant had been absent for a long time and Ms Toye had spoken with the manager of Dell Field Court and was aware that the other two members of staff had been able to work together without any issues arising in the interim.
32. Separately, the ET turned to the wrongful dismissal claim. It was itself satisfied that the misconduct in this case was indeed gross misconduct:

"72.8. … The claimant was well aware that she was expected to work at Meadowside. She had no good reason not to attend there and her complete failure to attend amounted to unauthorised absence which, in turn, amounts to gross misconduct."

33. Moreover, the ET found the Claimant's failure to engage with the Respondent further indicated that she did not intend to be bound by her contract of employment; her complete failure to attend meetings with the Respondent contributed to the ET's decision that the Claimant had committed acts of gross misconduct and was not entitled to pay in lieu of notice.

The decision of the EAT

34. For reasons which are not entirely clear, the EAT was prepared to consider the Claimant's grounds of appeal based on the Braganza case. It seems that Mr McNerney for the Respondent was drawn into making submissions about the ET's decision on the footing that it had been incumbent on the ET to deal with arguments based on that case, even though I consider that on proper analysis it had not been. This led to the EAT becoming embroiled in somewhat convoluted reasoning leading to the conclusion that the ET's reasons in relation to the Claimant's wrongful dismissal case (based on her allegation that the relocation instruction to her had been unlawful), when read together with its reasons in relation to the Claimant's unfair dismissal claim and her victimisation claim, were sufficient to provide an answer to the Claimant's new arguments based on the Braganza case.
35. At para. [32] of its decision the EAT was somewhat critical of the ET's decision on the question whether the redeployment instruction had been lawfully given, saying that "it is difficult to see that the ET addresses this question head on when considering the wrongful dismissal claim". I do not agree with this. Once it is understood that the Claimant's primary submission in relation to the unlawfulness of the instruction given to her was that it was given for reasons of victimisation, I consider that it is clear both that the ET did address this issue head on and also what its reasoning was for rejecting that submission.
36. As regards the Claimant's submission (b) (the relocation policy), the EAT correctly explained at paras. [38]-[39] what the answer to that submission was. The mobility clause was applicable in cases where the Respondent had a business need to relocate the employee, and hence was wider than the more limited ambit of the relocation policy (which was only concerned with particular types of business need); the Respondent had a business need to resolve the impasse within the dysfunctional team at Dell Field House; the Claimant's case fell within the scope of the mobility clause and outwith the relocation policy; accordingly the Respondent was entitled to rely on the mobility clause to give the relocation instruction to the Claimant. The EAT held at para. [42] that the ET had given sufficient reasons overall for taking this view, which provided an answer to submission (b). There is no appeal to this court in relation to this part of the reasoning of the ET or the EAT.
37. By drawing on parts of the ET's reasoning directed to the Claimant's unfair dismissal and victimisation claims, the EAT constructed an answer to the Claimant's new arguments based on the Braganza case (or, as labelled by the EAT, "the trust and confidence point"): [39]-[42]. In essence, the EAT said that the ET had sufficiently examined the facts of the case for the purpose of assessing the unfair dismissal claim and had given sufficient reasons for rejecting that claim as to provide an answer to the arguments based on Braganza. It is this reasoning of the EAT which Mr Feeny seeks to attack on the appeal to this court.

Discussion

38. As I have already indicated, it is not necessary or appropriate for us to go down this road, which starts from the false premise that the ET had an obligation to deal with possible arguments based on the Braganza case even though they had not been raised before it by the Claimant. Contrary to what the EAT seems to have thought, it is unsurprising that the ET did not deal distinctly with the arguments based on Braganza: those arguments had not been raised before it and there was no need for the ET to address them and set out distinct reasons for rejecting them.
39. It would not be helpful or appropriate for this court now to analyse whether the ET's reasoning in relation to other parts of the Claimant's case would have been sufficient to meet a claim based on the Braganza case, if such a claim had been made before it. That would be a wholly academic exercise. I express no view about whether the EAT was right or not in the answer it gave when it undertook that academic exercise.
40. In my judgment, the short answer to the present appeal is that the Claimant cannot show that the ET committed any error of law in relation to dealing with her present arguments based on the Braganza case, for the simple reason that she did not raise those arguments in the ET. So far as concerns submissions (a) and (b) which she did raise in the ET, the ET and the EAT have between them explained why those submissions could not be accepted, and there is no appeal in relation to that part of the case.

Lord Justice Underhill:

41. I agree.