EAT UNFAIR DISMISSAL – Mitigation of loss
An employer appealed against an award in respect of unfair dismissal, where the Claimant had worked as a carpenter for the employer but he had been treated for tax purposes as self-employed. The ET found that it was reasonable for him to have gone back to self-employment (which he had enjoyed for some eight years prior to entering into the service of the employer) but that there were employment opportunities ‘out there’ in which he might earn more, though he chose deliberately to remain self-employed. A ground that the Judge had not adequately reasoned his conclusion of fact that the Claimant had acted reasonably between dismissal and the date of the Employment Tribunal hearing was dismissed, with observations about the proper approach to mitigation of loss; a second ground that the Employment Tribunal was wrong to assess future loss as being restricted to three months loss was also dismissed on a proper reading of the Judgment; a third ground as to computation of the net loss was similarly dismissed since the material to support the appeal had not been advanced, nor was there material to show that the argument had been advanced below, and in its absence there was no proper basis to think the Judge had been in error of law; and a fourth ground (that an award for loss of employment rights should not have been made since the Claimant intended to remain self-employed and had in effect suffered no real loss) dismissed because it had not been argued below, but in any event there was no proper basis for thinking the assessment of loss was flawed.
Langstaff P J
[2015] UKEAT 0184 – 15 – 2210, [2016] ICR D3
Bailii
England and Wales
Employment
Updated: 17 January 2022; Ref: scu.565076