Appeal No. EAT/475/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 July 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MISS A MACKIE OBE
MS G MILLS

MR D ROOKE	APPELLANT

ANGLIAN WATER SERVICES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	The Appellant in person	

MR JUSTICE LINDSAY (PRESIDENT) 

1	We have before us, by way of a preliminary hearing, the matter of Mr D Rooke v Anglian Water Services Ltd.  This is the appeal of Mr David Rooke, who appears before us in person.  

2	On 30 June 2000, he lodged an IT1 for unfair dismissal.  He explained the difficulties that a requirement as to mobility would cause him, and he denied that there had been any good grounds for dismissal on the basis of gross misconduct, which it seems, the employer had asserted.  

3	On 25 July of last year, the Respondent, Anglian Water Services, put in its IT3 saying that mobility was not the issue, nor was there a redundancy.  There had, they said, been gross misconduct consisting of admitted refusals to work as directed, in several ways, and as set out in a letter of 6 April 2000.  

4	Well, those matters went forward to hearing at the Tribunal in Bury St Edmunds on 29 January of this year, and on 26 February the Decision, which was the Decision of the panel consisting of the Chairman, Mr D Crone and two lay members, unanimously declared that Mr Rooke was not unfairly dismissed.  On 10 March of this year, Mr Rooke asked the Employment Tribunal to review the case, and on 16 March the review was refused.  The Chairman left the message:
“I refuse the request for a review as having no reasonable prospect of success.  The applicant is seeking to revisit the case, and re-argue points decided or already taken into account.”

5	No doubt prompted by that, Mr Rooke lodged a Notice of Appeal on 29 March of this year, and he reverts in it to the question of mobility and the existence or not in his contract of employment of a mobility clause.  We could have understood a Decision by the Employment Tribunal that held that mobility or a mobility clause was nothing to do with the case, and asserting, for example, that Mr Rooke had been dismissed for failing to attend for work, or for failing to complete time bookings, or failing to advise of his whereabouts and so on.  All those are matters that seem touched on; there had been failures, perhaps unrelated to mobility or a mobility clause, but that was not the line that the Employment Tribunal’s reasoning took; they regarded mobility and the mobility clause as at the heart of the case.  What they say in paragraphs 11 and 12 of their Decision is this:
“Our reasons for coming to this conclusion”
and that was a conclusion that the application of Mr Rooke must be dismissed 
“are that at the heart of all this case is a contractual issue.  Was the applicant bound by the Mobility Clause in the unsigned contract of 1994.  We are satisfied that he was.  He received it, he read it, he never signed it.  We are unclear as to whether he never signed it because of the objections he raised to it in the letter to which we were already referred, document 17 of his bundle, or generally because he objected to the Mobility Clause.  The Mobility Clause is not mentioned in that letter.  Admittedly his original contract did not have a Mobility Clause but he had been promoted and it is not at all unreasonable that on promotion he got a new contract of employment and because of his wider responsibilities and usefulness to the respondent, a Mobility Clause was required of him.”

6	The Employment Tribunal records firstly that he had been employed since 1991 and secondly that he was offered a new contract in 1994, and that the 1994 contract form had a mobility clause and they also recorded that he had protested it and in their paragraph 2 they say (with our emphasis):-
“In 1994 as a result of a competitive recruiting programme the applicant was promoted and was tendered a contract of employment on 26 October 1994, as appears in pages 10 - 16 of his bundle.  That contract included at page 12 of the bundle, a Mobility Clause.  The applicant protested the contract, as can be seen by his note of 14 November 1994, document 17, but in fact in every respect worked to it and was paid in accordance with.”
Presumably it was the Employment Tribunal’s view that he had in every respect worked to the 1994 contract that led them to their later view that he was bound by that contract notwithstanding that he had protested it. 
7	However it is, as it seems to us, hard to see how the Tribunal could have held that in every respect he had worked the 1994 contract unless, and this does not appear, he had been required to move after 1994 under the provisions of the mobility clause and had then moved by reason of the mobility clause.  That, as we say, does not appear.  If one starts from a position, which we would take to be right, that neither side to a contract can unilaterally impose new terms on the other, then Mr Rooke’s continuing employment after the 1994 offer to him was rejected by him in relation to the mobility clause is prima facie as consistent with the company being content to abandon the mobility clause upon Mr Rooke’s protesting it as it is with Mr Rooke’s having accepted it, upon the company insisting upon it.  

8	For a determination of which of those two things is truly the right analysis one needs to look at events in much greater detail than seems here to have been the case.  We do see that the Notice of Appeal raises an arguable (and, of course, at this stage we are only concerned with what is arguable) issue of law, so that the matter seems to us appropriate to go to a full hearing.  It will be essential that the full hearing has the documents bundle which was put before the Employment Tribunal, and we think it so likely that the evidence will need to be looked at in some detail that, even without awaiting observations on the Respondent’s side, we think it right to ask the Chairman to supply his notes of evidence, even ahead of the Respondent coming into the case.

9	So that matter goes forward to a full hearing, Category B; Skeleton Arguments to be exchanged between the parties and sent to the Employment Appeal Tribunal not less than fourteen days before the hearing, and we would estimate the matter to take somewhere between one and two hours.