Aziz v The Fremantle Trust

An employment tribunal is not required to consider a legal argument that a claimant did not advance before it. A party cannot establish an error of law on appeal by recasting the case through a new legal framework. An appellate court should not conduct an academic assessment of whether the tribunal’s reasoning would have answered that new case. Where the arguments actually presented have been addressed by the tribunal and the Employment Appeal Tribunal, the appeal fails. A contractual mobility clause may also have a wider scope than an employer’s relocation policy where the clause responds to business need generally and the policy is confined to specified situations.

The claimant’s employer instructed her to move to another workplace under a contractual mobility clause. She refused and was dismissed for gross misconduct. The Employment Tribunal dismissed claims of unfair dismissal, victimisation, wrongful dismissal and wrongful deduction of wages. The Employment Appeal Tribunal dismissed her appeal under UKEAT/0027/17/LA.

Before the Court of Appeal, the claimant principally relied on Braganza v BP Shipping Ltd, [2015] UKSC 17, arguing that the employer had failed sufficiently to investigate alternative relocation arrangements. She also challenged the reasons given for treating the instruction as lawful. The central issue was whether the Employment Tribunal erred in law by failing to address arguments which had not been raised before it.

Lord Justice Sales gave the judgment, with Lord Justice Underhill agreeing. The appeal was dismissed.

1. The claimant’s case before the Employment Tribunal was that the relocation instruction was an act of victimisation or was outside the scope of the employer’s relocation policy. The Tribunal rejected the victimisation case for proper reasons. The Employment Appeal Tribunal correctly explained that the mobility clause was wider than the relocation policy: the clause applied where there was a business need to relocate an employee, whereas the policy concerned specified types of business change. The instruction therefore fell within the clause and outside the policy. That part of the decision was not appealed.
2. The claimant did not rely before the Employment Tribunal on the principles in Braganza v BP Shipping Ltd, [2015] UKSC 17; [2015] 1 WLR 1661. The Tribunal had no duty to consider arguments founded on those principles of its own motion. Its failure to address them was consequently not an error of law.
3. The Court declined to analyse whether the Tribunal’s reasoning on other aspects of the case would have answered a hypothetical claim based on Braganza. That would have been an academic exercise, and the Court expressed no view on whether the Employment Appeal Tribunal’s analysis of that hypothetical issue was correct.
4. The Tribunal had found that the instruction was lawful, that the claimant’s refusal to attend work amounted to gross misconduct, and that the reason for dismissal was her conduct rather than victimisation. The claimant could not show any material error of law in relation to the case actually presented below.

• Court of Appeal (Civil Division): dismissed the appeal from the Employment Appeal Tribunal. [2018] EWCA Civ 2605.
• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Tribunal. UKEAT/0027/17/LA.
• Employment Tribunal: dismissed claims of unfair dismissal, victimisation, wrongful dismissal and wrongful deduction of wages.