Aziz v The Freemantle Trust (A Charity Limited By Guarantee)

A relocation policy dealing with specified organisational changes does not, without clear language, confine a wider contractual mobility clause. An employer may require a change of workplace where the business needs so require, provided the clause is exercised consistently with the implied obligation of trust and confidence.

In a conduct dismissal case, the tribunal must apply the statutory fairness inquiry and the range of reasonable responses. For wrongful dismissal, it must determine objectively whether the employee was in repudiatory breach. A tribunal’s reasons may be read as a whole, including findings made under related claims, if they adequately resolve the contractual and fairness issues.

The Claimant was employed by the Respondent charity and was directed to move from one care facility to another after concerns about dysfunctional team working. Her contract contained a mobility clause. She refused to attend the new workplace or meetings arranged by the Respondent, and was dismissed for unauthorised absence and failure to engage.

The Watford Employment Tribunal dismissed her claims for unfair dismissal, wrongful dismissal and victimisation. It found that the move was supported by business reasons, that the mobility clause covered the situation, and that the Claimant’s absence amounted to gross misconduct.

On appeal, the Claimant contended that the Tribunal had failed to decide whether the mobility clause had been lawfully exercised and had given inadequate reasons for both dismissal claims.

1. Appeal dismissed. Read as a whole, the Employment Tribunal’s reasons adequately addressed the contractual basis for the instruction to relocate, the fairness of the dismissal, and the wrongful dismissal claim.

2. For wrongful dismissal, the Tribunal had to determine objectively whether the Claimant’s conduct was a repudiatory breach of contract. A refusal to attend a new workplace could not constitute such a breach if the employer’s instruction itself breached the contract. The Tribunal was therefore required to determine whether the mobility clause lawfully authorised the instruction.

3. The contractual mobility clause was not limited by the Respondent’s relocation policy. The policy made provision for consultation and benefits in specified circumstances, but did not restrict the broader contractual power to require relocation where the needs of the business required it. The Tribunal was entitled to find that the business need arising from the dysfunctional team fell within the clause.

4. The Tribunal had also sufficiently scrutinised the exercise of that power. It considered the decision-maker’s investigation, including her failure to speak directly to two colleagues, her discussion with the manager, and the fact that those colleagues had worked together without difficulty during the Claimant’s lengthy absence. Those findings supported the conclusion that the decision had been reasonably made and did not breach the implied obligation of trust and confidence.

5. For unfair dismissal, the Tribunal correctly applied section 98(4) of the Employment Rights Act 1996, the Burchell questions and the range of reasonable responses. Although it would have been preferable to separate its reasoning under each claim, its findings established that the instruction was contractual and reasonably exercised. The Claimant’s refusal to comply and failure to engage could therefore amount to gross misconduct. No error of law or inadequacy of reasons was shown.

• Employment Appeal Tribunal: appeal dismissed: [2017] UKEAT 0027_17_2507.
• Watford Employment Tribunal: dismissed the claims for unfair dismissal, wrongful dismissal and victimisation in a Judgment sent to the parties on 21 June 2016.