The claimant was employed at one base under a contract allowing his employers to require him to move to another on reasonable notice. The employers required him to move but at very short notice. He refused. An impasse was reached and he resigned, treating the attempt to move him as a breach of contract which amounted to a constructive dismissal. The Tribunal accepted that the employer’s breach amounted to a constructive dismissal, but then went on to say that he ought to have accepted that very same employment in mitigation of his loss.
Held: The employee’s appeal succeeded. Applying the general law of contract, an employee cannot be said to have failed to mitigate his loss by refusing the employer’s offer of alternative employment before he is dismissed. They said: ‘We accepted the submissions of Counsel for the Appellant, the employee, that as the dismissal was in our view, clearly on 8 May, conduct before dismissal was not relevant in relation to mitigation of loss. In other words, a refusal to accept work at the other factory could not amount to a failure to mitigate when the contract was subsequently terminated as one of constructive dismissal.’
Judges:
Lord Mayfield
Citations:
[1988] IRLR 514
Cited by:
Cited – F and G Cleaners v Saddington and Others EAT 16-Aug-2012
EAT UNFAIR DISMISSAL – Mitigation of loss
The Claimants worked for Respondent 1 who supplied window cleaning services under contract to a local authority. The contract was subject to a re-tendering process; . .
Lists of cited by and citing cases may be incomplete.
Employment, Contract, Scotland
Updated: 04 May 2022; Ref: scu.463685