Title: Appeal No
Author: Joe

Appeal No. EATS/0019/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 11 March 2004

 
Before
THE HONOURABLE LORD JOHNSTON
MR A G McQUAKER
MR M G SMITH

 

JAMES BRADLEY	APPELLANT

 

 
FREEPORT PLC 
(formerly Freeport Leisure plc)	RESPONDENTS

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellant

Mr S Miller, Solicitor
Of-
Messrs Macroberts
Solicitors
152 Bath Street
GLASGOW   G2 4TB

For the Respondents

Mr N Scampion, Barrister
Instructed by-
Messrs Rawlison Butler
Solicitors
Griffin House
135 High Street
CRAWLEY   RH10 1DQ

 

LORD JOHNSTON:
 
1.	This is an appeal at the instance of the employee against a decision of the Employment Tribunal sitting in Glasgow that he had not been unfairly dismissed from his employment.
 
2.	The case has had a complicated procedural history inasmuch that it has already been to this Tribunal in respect of an application for a review which was refused by the Chairman.  This Tribunal requested the Chairman to amplify her reasons in that respect and she did so by letter dated 19 December 2003 addressed to the parties.  It is unfortunate there was also correspondence passing between the Tribunal office and the parties which was not shown to either side, but, in the result, it appears the Chairman decided the matter without reference to any submissions that might have been made to her and the matter was therefore of no importance.
 
3.	The issue now before us is as to the reasonableness of the dismissal, the facts of which were seriously not in dispute.
 
4.	The appellant had originally been employed as a manager by the respondents, working within the United Kingdom, initially, at least, having regard to the fact that that was the only area of the company’s operations.  However, the company is described as a dynamic one and sought to expand.  It therefore proposed to create a post of Group Manager and offered this post to the appellant which would have involved him working abroad, something he had not done previously.  There was, however, a history of some matrimonial problems arising from the fact that the appellant from time to time was away from home within the United Kingdom.
 
5.	The response by the appellant to this request was effectively a refusal with some compromise suggestion proposed in a letter he wrote to the company on 20 February 2001.  He made three suggestions in that letter as follows:-
 
““1.	that I undertake no overseas travel at the moment but we review this 3 months from today’s date.  This will allow my personal situation to settle down and allow me to make the necessary family arrangements.
 
2.	that we should be able to agree the way forward relative to overseas travel after the above initial ‘settling in period’, but subject to a maximum of 2 nights away from home per month.
 
3.	that after a period of six months, we sit down and review the situation and see what other options might be available if things are not working out, including consideration of whether someone at Group Level should be helping out with the European sites, rather than somebody with a Regional/National remit such as myself”.”
 
6.	The employer was not, however, willing to accept this proposal which initiated a meeting on 21 February where it appears, although it is not entirely clear, the proposals being offered by the appellant were not acceptable to the employer, who, nevertheless, maintained the offer of a new job to the appellant.  After sundry communication, it emerged that the appellant would not accept the new post and after certain discussions about alternative employment which came to nothing, the employer finally terminated the appellant’s employment in March to the effect that it would terminate on 29 June 2001.
 
7.	The Tribunal identified the reason for dismissal as some other substantial reason in terms of the statute and the only issue before us is whether or not the Tribunal were entitled to conclude that that had been made out in this case.  In this respect, the important and crucial finding by the Tribunal is on page 11 to the effect:-
 
“The fact that the respondents’ Chief Executive was not prepared to wait for the three months suggested by the applicant was in the opinion of the Tribunal not unreasonable in the circumstances.”
 
8.	The sole real point before us was whether or not the Tribunal were justified in that conclusion.  Mr Miller maintained they were not, not least because they had not properly considered the proposals being put forward by the appellant at the meeting of 21 February.  On the other hand, Mr Scampion, for the employer, simply pointed to the fact that it was an issue of fact to be determined by the industrial jury, namely, the Employment Tribunal.
 
9.	Despite what was submitted by Mr Miller, we would not categorise the offer made by the appellant in his letter of 20 February as a compromise.  It was effectively a rejection of the offer being made, plus a plea for the matter to be postponed.  The crucial issue therefore was whether or not the employer acted reasonably in refusing such a postponement.  In our opinion, the Tribunal are more than entitled to reach the conclusion they did on that matter which we have quoted and it would be quite inappropriate for this Tribunal to categorise their decision as perverse, which Mr Miller, at the end of the day submitted, had to be his position.  He did have a subsidiary submission that the matter be remitted back to the Tribunal for further consideration but we do not consider that to be necessary.
 
10.	In the foregoing circumstances this case raises a question of fact which the Tribunal has addressed upon the evidence and reached a conclusion that they were entitled to reach upon that evidence.  We will not therefore interfere with it. 
 
11.	The appeal is dismissed.