John Ross v N MacDougall Advocate The Highland Council — 2022

John Ross brought a claim of unauthorised deduction from wages covering 21 January 2020 to 5 October 2020. The tribunal found that he had been appointed principal teacher of Craft, Design & Technology at Dingwall Academy, had been absent from work from February 2018, and had gone through mediation and grievance processes before the disputed period. It accepted that in September 2019 the Highland Council discussed and then offered him a return to work as a Craft, Design & Technology teacher at Inverness Royal Academy, which would have restored him to full pay, but he did not take up the role at that time.

The tribunal considered the claim under section 13 of the Employment Rights Act 1996, and referred to Miles v Wakefield Metropolitan District Council and Gregg v North West Anglia NHS Foundation Trust. It approached the issue by asking what wages were properly payable, and whether the claimant could show that he was ready, willing and able to work or that there was an involuntary impediment to working. It rejected the claimant's reliance on his participation in mediation, his expressed willingness to move, and the later Fortrose discussions as establishing that he was ready, willing and able to work throughout the claim period.

The tribunal found that the claimant's position focused on Fortrose as a more suitable alternative, but that this was not the same as accepting work made available under his contract. It found that the respondent had made available work at Inverness Royal Academy on 22 January 2020, and that the claimant's unwillingness to accept that offer was unreasonable. It also found that the criticisms advanced about Fortrose were criticisms of delay or of the choice of alternative post, not evidence of an impediment preventing him from working.

On that basis, the tribunal held that no wages were properly payable for the period 21 January 2020 to 5 October 2020 and dismissed the claim. The judgment records that wages resumed when the claimant returned to work on 6 October 2020.