Appeal No. EATS/0055/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 17 December 2003

Before
THE HONOURABLE LORD JOHNSTON
MR A G McQUAKER
MR P M HUNTER

ROBERT FULTON	APPELLANT

RMC RUSSELL PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr G Murray
Employment Consultant
5 Craigwell Avenue
Rutherglen
GLASGOW   G73 3SX

For the Respondents

	

Mr D Strang, Solicitor
Of-
Messrs Brechin Tindal Oatts
Solicitors
48 St Vincent Street
GLASGOW   G2 5HS

	

LORD JOHNSTON:

1.	This appeal raises a short but sharp point at the instance of the employee appellant.

2.	The appellant succeeded before the Employment Tribunal in establishing that he had been unfairly dismissed inasmuch that the employer sought to establish the reason as redundancy but failed to do so on the evidence.

3.	At the time of the termination of his employment, the matter of employment elsewhere within the respondents’ company was re-raised, it having been first mentioned the previous summer, when, on the evidence, the appellant was offered an alternative job within the company’s operations but declined it for various reasons.  At the time of his dismissal, according to the evidence, the question of whether he would re-apply or apply for another vacancy which had occurred at the other but same quarry with which he had been involved on the previous occasion, arose, but he declined to apply.

4.	On the basis of that declinature, the Tribunal, making a basic award, determined in terms of section 122(2) of the Employment Rights Act 1996 that such an award should be reduced by 50% to reflect that conduct on the part of the appellant.

5.	Mr Murray, on behalf of the appellant, submitted that it should not properly be regarded as conduct to fail to apply for a job.  He also submitted that it was not appropriate to take the matter into account have regard to the notice provisions in section 122(2).  The Tribunal had, in any event, exaggerated the position by making a 50% reduction and should not have made any reduction at all.

6.	Mr Strang, appearing for the respondents, submitted that the Tribunal were entitled to assess the effect on the dismissal of the failure on the part of the appellant to apply for the alternative job as a percentage.  This they had done and this Tribunal should not interfere.

7.	With this last proposition we agree.  The Tribunal plainly considered that the failure on the part of the appellant to apply for the other position was conduct which bore upon, but not completely upon, the issue of dismissal.  Obviously, if he had been offered another job, as he had been previously and turned that down, the award would fall to be reduced by 100% in terms of the same subsection.

8.	In these circumstances we consider the Tribunal, sitting as an industrial jury, reached a decision upon the evidence they were entitled to make and we will not interfere with it.

9.	This appeal is refused.