EAT (Unfair Dismissal : Mitigation of Loss) The claimant was constructively unfairly dismissed by the respondent as a result of a breach of the implied term of trust and confidence during a management restructuring. The employment tribunal decided not to make any compensatory award on the baiss that the claimant had failed to mitigate his loss, having declined an offer of re-employment.
The employment tribunal’s judgement twice stated incorrectly the test for mitigation of loss and used the correct test interchangeably with those incorrect statements. The applicable test is not whether an employee’s conduct in refusing re-employment was reasonable, but whether the employer had shown that the employee’s conduct was unreasonable. A failure ot acknowledge that the onus if prrof was on the wrongdoer coupled with a focus on the employee’s actions without contemplating that more than one course could reasonably have been taken illustrated that the tribunal had failed to follow the principles enunciated in Wilding v British Telecommunications plc 2002 I079, recently re-affirmed in Cooper Contracting Limited v Lindsey UKEAT/0184/15.
It was counter intuitive to regard an employee who was constructively unfairly dismissed as unreasonable in refusing to allow the employer to make amends by re-employing him when the law does not allow such a wrongdoer to ‘ cure’ a repudiatory breach when the employee is deciding whether to affirm or go ( Bournemouth University v Buckland [2010] ICR 908). However, the present case did not require a decision in principle on whether such an outcome was perverse.
Appeal allowed and case remitted to a fresh tribunal on the issue of remedy.
Lady Wise H
[2016] UKEAT 0008 – 16 – 1210
Bailii
England and Wales
Employment
Updated: 26 January 2022; Ref: scu.572021