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; Respondent 2 was successful and the contract passed to them. R2 refused to accept the Claimants as employees and, instead, made them offers of work on a self-employed basis and on lesser terms. R2 appealed against the Employment Tribunal’s rejection of their case that the Claimants had failed to mitigate the loss caused by their unfair dismissal by refusing to accept the alternative offer.
Held:
1. The ET had not made the error of deciding the mitigation issue solely on the basis that the Claimants would lose their statutory rights if engaged on self-employed terms – which would have been lost once they were dismissed in any event. The ET relied as they were entitled to on all of the differences between the terms of the Claimants’ employment and the inferior terms as offered by R2.
2. In any event at the date of the rejection of the offers, the Claimants had not yet been dismissed; and therefore no duty to mitigate arose: Savoia v Chiltern Farms ([1981] IRLR 65) followed.
Judges:
Jeffrey Burke QC
Citations:
[2012] UKEAT 0140 – 11 – 1608
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Savoia v Chiltern Herb Farms Ltd CA 1982
The employee submitted that a constructive dismissal cannot be fair.
Held: The submission failed. Waller LJ said: ‘He has cited to us a number of authorities, nearly all of which are against him but which he says are wrong.’ In considering . .
Cited – Wilson v Post Office CA 26-May-2000
Where the employer wrongly characterises the statutory reasons as one of conduct he is not prevented from relying on the correct statutory reason where the essential issues are known to both parties. The Tribunal was said to have alighted on a . .
Cited – Wilding v British Telecommunications Plc CA 19-Mar-2002
The employee challenged the Employment Tribunal’s finding, upheld by the EAT, that he had not acted reasonably in refusing an offer of re-employment made by his employer.
Held: The appeal failed. Potter LJ said: ‘As was made clear in the . .
Cited – Tilson v Alstom Transport CA 19-Nov-2010
The parties disputed whether the claimant agency worker was in law the employee of the respondent.
Held: The test was whether it was necessary to infer such a contract to explain the conduct of the parties (Elias LJ). The EAT were right to . .
Cited – McAndrew v Prestwick Circuits Ltd EAT 1988
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, . .
Cited – Debique v Ministry of Defence EAT 15-Sep-2011
EAT SEX DISCRIMINATION – Other losses
RACE DISCRIMINATION – Other losses
Appellant gives notice to leave the Army as a result of sex and race discrimination (see [2010] IRLR 471) – During notice period . .
Lists of cited by and citing cases may be incomplete.
Employment, Damages
Updated: 04 November 2022; Ref: scu.463683