The employee was summarily dismissed by the night production foreman for missing a night shift immediately before taking his annual leave. The personnel officer told the employee about his right of appeal; but the employee decided not to appeal as he did not think there was any point in doing so. The following week the employers made another attempt to persuade the employee to appeal; he was told that there was nothing to lose; but eventually he decided not to do so. The Industrial Tribunal found him unfairly dismissed, but that he had contributed to the dismissal by his own fault in culpably absenting himself from work, making no attempt to explain or apologise before he went on his holiday, becoming excited and truculent at the dismissal hearing and failing to make use of the appeal procedure, which might well have secured a reversal of the decision to dismiss. The Tribunal would therefore have reduced both the basic and compensatory awards by 50%.
Held: A failure to pursue an internal appeal does not affect the fairness of a dismissal. The employee’s failure to use an appellate process is not a matter to be taken into account when the reasonableness of the employers’ actions is being considered under section 57(3), nor can it be construed as any kind of acquiesence in the dismissal but that it can be taken into account when determining whether the employee has mitigated his loss.
‘We have also to consider the submission that the employee failed in his duty to mitigate his loss; see section 74(4) of the Employment Protection (Consolidation) Act 1978. It does seem to us that where there is an appeal procedure which might result in the rescission of a dismissal decision, and where, as in this case, the industrial tribunal have found that his making use of the appeal procedure might well have secured a reversal of the decision, then it is open to argument, and in our view can properly be argued, that he has not taken all reasonable steps to mitigate the loss which must flow from his dismissal, should it shown to be unfair. We do not consider bearing in mind the matters that can properly be taken into account, whether it is on the question of contribution by reason of his own culpable or blameworthy fault, or whether it is by reason of his failure to mitigate his loss, that it can be said that his compensatory award should be reduced by 100%. Although the industrial tribunal in considering the question of contribution erred in taking into account his failure to use the appeal procedure, it does seem that this was a matter which could properly be considered when looking to see whether he had taken all necessary and reasonable steps to mitigate his loss. In all these circumstances we do not consider that it would be right to find that there was any error in the assessment of the industrial tribunal that his basic and compensatory awards should be reduced by 50%.’
Citations:
[1980] ICR 239
Statutes:
Employment Protection (Consolidation) Act 1978 74(4)
Cited by:
Doubted – Lock v Connell Estate Agents EAT 10-May-1994
The employee had failed to meet targets in a difficult sales market. He was dismissed. The ET had found that the sales targets were impossible. The EAT considered what was the effect of his failure to appeal against his dismissal.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 02 May 2022; Ref: scu.402933
