The employee was found to have been unfairly dismissed, but he had not pursued his internal appeal rights.
Held: A failure by a dismissed employee to appeal against his dismissal could not amount to a failure to mitigate his losses within section 74(4).
Lord McDonald MC said: ‘The appellants accept the finding of unfair dismissal. They argue however that, because she declined to follow the internal appeal procedure, she had therefore failed to mitigate her loss. The suggestion was made to us that we should take account of this and reduce the award of compensation by 50%.
We take it to be clearly established that there is no obligation upon an employee who is dismissed to follow up an internal appeal procedure before making application to an industrial tribunal. This in our opinion is clear from the case of Chrystie v. Rolls Royce (1971) Ltd [1976] IRLR 336 and Hoover Ltd v. Forde [1980] ICR 239. It is true that in the latter case an industrial tribunal had found that had the dismissed employee availed himself of the appeal procedure the decision to dismiss him might have been rescinded and on that ground apparently his compensation was reduced by 50%. We are bound to say that we have great difficulty in accepting the reasoning in that case. It seems to us to be purely speculative to attempt to assess what would have happened in the event of an appeal being taken. There are many imponderable factors. One is the manner in which the appeal is handled. Another is the person or persons to whom the appeal lies. In an industrial situation it may very often happen that an employee who has been dismissed considers that there is no point in him following up the internal appeal procedure because he does not have confidence in the persons who would hear that appeal. It would therefore be quite wrong in our view to penalise an employee who has been unfairly dismissed by reducing her compensation because she did not follow through whatever internal appeal procedure may have existed.
That is enough to decide the case in favour of the respondent and the appeal is therefore dismissed.’
Citations:
[1985] IRLR 95
Statutes:
Employment Protection (Consolidation) Act 1978 74(4)
Cited by:
Cited – 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, Scotland
Updated: 15 May 2022; Ref: scu.402934
